Opinion
19648.
ARGUED APRIL 9, 1957.
DECIDED MAY 15, 1957. REHEARING DENIED JUNE 12, 1957.
Alimony. Before Judge Vaughn. DeKalb Superior Court. January 10, 1957.
Marvin O'Neal, Jr., for plaintiff in error.
A. D. G. Cohn, A. S. Grove, contra.
A judgment induced by the fraud of the plaintiff, wherein the proceedings show that the court did not have jurisdiction of the person of the defendant, is void. A void judgment may be attacked in any cause in any court where it is material to the interest of the parties. Proceedings to set aside a judgment must be brought within three years from the rendition thereof.
ARGUED APRIL 9, 1957 — DECIDED MAY 15, 1957 — REHEARING DENIED JUNE 12, 1957.
Anna Homburger filed a petition in the Superior Court of DeKalb County against Kurt Homburger, and, as amended, her petition alleged: On September 16, 1937, the parties were married in Germany. On May 17, 1938, the defendant abandoned the petitioner and came to the United States, and eventually came to Georgia, where he has since lived. On April 30, 1940, the defendant filed suit in the Superior Court of Fulton County against the petitioner for a total divorce. In his petition the defendant under oath alleged: "That the defendant, Anna Homburger, is a nonresident of the State of Georgia and the last known address of said defendant was New York City, New York, but the petitioner does not now know and has never known the street address of said defendant in New York City." This allegation was false, and was made for the purpose of obtaining a fraudulent divorce from the petitioner. Thereafter the defendant procured an order from the superior Court directing that his suit be served by publication, because the petitioner was a nonresident of the State of Georgia. Citation was issued and published, and the Clerk of the Superior Court of Fulton County mailed a copy of the citation in an envelope addressed: "Anna Homburger, New York City, New York." No street address was placed on the envelope because the defendant had sworn that he did not know the petitioner's street address. The petitioner shows that, if the defendant did not know her street address, he could have immediately learned it upon making inquiry, "and he therefore knew, or could have, would have, and ought to have, in the exercise of ordinary care and diligence, known, by making inquiry," because: the defendant appeared in Domestic Relations Court in the City of New York in September, 1938, and testified in the case of Anna Homburger against Kurt Homburger, in a claim for support; at that time the defendant was represented by named attorneys of a named address, and the petitioner was represented by a named attorney of a named address; her correct address was on file in the court aforesaid; her attorney's address was the same when the suit was filed in Fulton County as at the time of the defendant's appearance in New York; the defendant by inquiry himself, or through his attorneys in New York, could have obtained the petitioner's street address from her attorney or the New York court; the defendant heard the petitioner testify that she was being supported by the Jewish Women's Council, and by inquiry of that organization he could have learned the petitioner's street address in New York City; at the time the divorce suit was filed, his mother and sister knew the petitioner's street address, and he could have ascertained it by a request to either of them. The envelope mailed by the clerk was returned because of insufficient address. The defendant knew it would be returned, because it is impossible to have mail delivered in New York City without proper address. Thereafter the court passed an order declaring service perfected, the cause proceeded to trial, and two verdicts of a jury and a decree were obtained by the defendant, granting him a total divorce. The petitioner had no notice of the pending suit, nor of the entry of the verdicts and decree until December 15, 1941, when she first learned that a decree of divorce had been entered. The petitioner never saw the decree, but obtained an exemplified copy in May, 1950. The divorce is void because it was obtained by fraud. The court had no jurisdiction because there was no valid service of the petition, by publication or otherwise. The defendant abandoned the petitioner without cause. The defendant owns certain described property and has a large amount of money, stocks, and bonds. In addition to the defendant's property, he is capable of earning, and does earn, in excess of $15,000 per annum. He should pay the petitioner a reasonable sum for alimony, including a reasonable sum from the date of the abandonment.
The prayers were: for process; for temporary alimony and attorney's fees; for an award of temporary alimony to revert to the date of the separation; for permanent alimony; that the defendant be enjoined from disposing of any of his property; for rule nisi; that the decree of divorce entered in the Superior Court of Fulton County be declared null and void, and held to be a nullity; that the prayers for temporary and permanent alimony, counsel fees, and injunction be granted, notwithstanding the existence of the void judgment and decree; and for other relief.
The defendant's demurrers to the petition as amended were renewed, and the petition was dismissed. The exception is to this judgment.
"The judgment of a court having no jurisdiction of the person or subject-matter, or void for any other cause, is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it." Code § 110-709.
In the present case the plaintiff contends that the judgment rendered in Fulton Superior Court, granting a total divorce between the parties, is void because the court rendering the judgment had not acquired jurisdiction by service upon her in the manner provided by law.
Code § 81-206 (as amended, Ga. L. 1946, pp. 761, 770) provides that in actions for divorce, where the defendant shall reside out of the State, the judge, either in term or vacation, may order service to be perfected by publication in the paper in which the sheriff's advertisements are printed, twice a month for two months. This section also provides what the notice shall contain. Section 81-207 (as amended, Ga. L. 1946, pp. 761, 771) provides that, where the residence of the nonresident defendant is known, the party obtaining the order shall file with the clerk of the court, at least thirty days before the term next after the order for publication, a copy of the newspaper, with the notice plainly marked, and it shall be the duty of the clerk to properly mail the paper to the party named in the order, "and make an entry of this action on the petition or other writ in said case." Section 81-208 provides that, where service by publication is ordered, it shall be the duty of the judge before the trial to determine whether such service has been perfected, and to enter an order showing service, which shall be entered on the minutes of the court.
Compliance with the provisions of the above Code sections is necessary to give the court in which the proceeding is filed jurisdiction of the case. If, without so complying, the plaintiff proceeds to try the case and have the court enter a decree, "such a decree is void, and at the suit of the defendant upon whom service has not been perfected, to have the decree declared void, the decree should be set aside." Stiles v. Stiles, 183 Ga. 199, 200 ( 187 S.E. 870); Parish v. Parish, 32 Ga. 653; Gwin v. Gwin, 145 Ga. 481 ( 89 S.E. 574); Millis v. Millis, 165 Ga. 233 ( 140 S.E. 503); Smith v. Smith, 173 Ga. 718 ( 161 S.E. 254); Steele v. Steele, 203 Ga. 505 ( 46 S.E.2d 924). In the present case the facts alleged are not in point with the facts in any of the above cases.
It is not contended that the statutory notice was not published, that the newspaper was not filed as required, or that the clerk failed to make an entry on the petition as to mailing as required by statute. The sole contention is that the defendant could have known of the petitioner's street address by making inquiry, and that "he therefore knew, or could have, would have, or ought to have, in the exercise of ordinary care and diligence, known by making inquiry." "An allegation in a petition that a person knows or by the exercise of ordinary care ought to know a given fact is not an allegation of actual notice of such fact." Central of Ga. Ry. Co. v. Tapley, 145 Ga. 792 (2) ( 89 S.E. 841).
It is alleged that the plaintiff in the divorce action (the defendant in this case) swore that he "does not now know and has never known the street address of said defendant." This was all that the law required of him. Code (Ann.) § 81-207. Stiles v. Stiles, 183 Ga. 199, supra. The divorce action does not show any fatal legal deficiency upon the face of the proceedings, and the verdict and decree of divorce are not "null and void" as contended.
"If the defendant, or those under whom he claims, shall have been guilty of a fraud by which the plaintiff shall have been debarred or deterred from his action, the period of limitation shall run only from the time of the discovery of the fraud." Code § 3-807. In the present case it is alleged that the "petitioner first learned, on December 15, 1941, that a decree and judgment" of divorce had been obtained by the defendant. No attempt is made to justify or explain the long delay in bringing the present action. From the facts alleged, no legal or equitable justification for the delay is shown.
It was not error to sustain the grounds of the renewed demurrers, which attacked the petition for the deficiencies herein indicated. The petitioner's cause being barred by her acquiescence and long delay beyond the statute of limitations, the other grounds of demurrer require no ruling.
Judgment affirmed. All the Justices concur, except Duckworth, C. J., who dissents.