Summary
In Stephens v. Moore, 214 Miss. 760, 59 So.2d 846, the decree on its face showed that there was due process; but the affidavit to the bill of complaint was not sufficient to show the residence of the defendant.
Summary of this case from Honeywell v. AaronOpinion
No. 38421.
June 9, 1952.
1. Workmen's Compensation — statutes — nonapplicability of statute enacted since death of employee.
Where the employee was killed in the course of his employment on January 18, 1950, compensation claims are governed by the statute then in effect and not by an amendatory statute approved after his death. Chap. 354 Laws 1948; Chap. 412 Laws 1950.
2. Workmen's Compensation — appeals — record of compensation commission — evidence outside record.
Appeals from the compensation commission under the workmen's compensation statutes are considered only upon the record as made before the commission and where an award to the dependent mother of the deceased employee was ordered by the commission in installments, from which she took no appeal, and there was nothing in the commission record to show error in the commission in not commuting the award into a lump-sum payment, it was error in the circuit court to hear evidence dehors and to order an award to the mother in a lump-sum. Chap. 354 Laws 1948; Chap. 412 Laws 1950.
3. Divorce — jurisdiction — nonresident — collateral attack.
A decree of divorce against a nonresident defendant which recites that the cause was heard "on due process upon the defendant" and further that "the court, having fully examined the pleadings and process, finds that it has jurisdiction of the subject matter and of the parties" is not void so as to let in a collateral attack on the ground that the statutory affidavit required in cases against nonresident defendants could not be found among the papers in the case or anywhere in the office of the clerk.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Jasper County; HOMER CURRIE, Judge.
Satterfield, Ewing, Williams Shell, for appellants.
I. The lower court had no power to award a lump sum settlement.
The attorney-referee entered an order providing for payment of compensation to Fannie Billups Moore as a dependent parent in accordance with the provisions of Sec. 9 of the Act. The statute, Secs. 13(a) and (b), required the compensation to be paid semi-monthly (or upon some other period as the Commission should determine). The order of the Commission provided that the payment to Fannie Billups Moore be paid as directed by the attorney-referee. The statutory provision for a lump sum settlement is found in Sec. 13 (j) of the Act, which in part is as follows: "The commission shall be the sole judge as to whether or not a lump sum payment shall be to the best interest of the injured worker or his dependents."
The authority and power of the circuit court upon appeal is provided in Sec. 20 of the Act, a portion of which is as follows: "* * * The circuit court shall review all questions of law and fact. If no prejudicial error be found, the matter shall be affirmed and remanded to the commission for enforcement. If prejudicial error be found, the same shall be reversed and the circuit court shall enter such judgment or award as the commission should have entered. * * *" Thus where there is no appeal, the circuit court has no power to review the award. And in any event, it must find prejudicial error in order to enter judgment other than affirmance. In the case at bar Fannie Billups Moore did not appeal at all. These appellants did appeal from the award to her but voluntarily dismissed their appeal by motion therefor filed June 22, 1951. The order of the lower court dismissing said appeal upon said motion, dated August 29, 1951, also provided for the lump sum payment to Fannie Billups Moore. The order recites that evidence was heard on the lump sum question, but there being no appeal by either interested party before the court at that time it was without any power to go into or decide such matter. Any decree of judgment must have some pleading to support it, and here there was none whatever. Further, the circuit court, being an appellate court in this matter had no jurisdiction except as provided by statute. The principle scarcely needs citation of authority to support it because it is so well known. We do cite, however, the case of McClanahan v. O'Donnell, 148 Miss. 478, 114 So. 236.
II. The void decree was subject to collateral attack.
Lorene Triplett was married to Alvin Rushing, and that was on May 25, 1935, according to the license certificate in the record. She testified she married Alvin Rushing in May, 1936. He and his relatives and she and her relatives all lived at Carthage, Mississippi, at that time. Her sister and his brothers and relatives all lived in the same part of the same community and continued to do so, but nevertheless, when she filed suit for divorce in 1947, whereby the purported decree of divorce was obtained on February 10, 1948, she did not make any inquiry of any of them as to the whereabouts of Alvin Rushing. That would have obviously and immediately led to a knowledge of the whereabouts of Alvin Rushing. She committed a fraud on the court and upon the jurisdiction thereof, by her false allegation in the bill of complaint that she was a resident of Leake County and committed perjury when she so testified on the hearing, as she must have done in order for the court to proceed, since no bill for divorce can be taken as confessed.
The affidavit appended to the complaint in the divorce cause is identical in effect and substance with that involved in the case of Evans v. Brown, 198 Miss. 237, 21 So.2d 588, wherein this Court said: "Counsel for the appellee say that the words in the affidavit to this bill for a divorce `that the causes for divorce stated in said bill are true as stated' covers the allegation in the bill as to the defendant's nonresidence and post office address. With this we are unable to agree, for nonresidence is not a ground for divorce, consequently, there was no affidavit on which publication for the defendant could have been made. Amis on Divorce and Separation, Section 246."
It was further shown in evidence without dispute that Alvin Rushing had never obtained a divorce. He testified that he had never filed suit for or obtained a divorce. Lorene testified that she never obtained a divorce from Alvin Rushing except the one she had been talking about (on cross-examination) and stated that was the only divorce she had (meaning the alleged Leake County divorce).
The bill of complaint filed by Lorene Triplett Rushing does not have attached to it an affidavit that the matters and things therein alleged are true, nor was any other affidavit filed in the proceeding to support publication. The only affidavit is that the causes for divorce are true as therein stated and that the bill is not filed by collusion for the purpose of obtaining a divorce. The record amply shows no evidence whatever of good faith by Lorene for the reason that the whole family of Alvin Rushing were living at her and their former home, and she testified she made no inquiry as to his address or residence but left that to her attorney, and her attorney stated that he asked one or two Negroes and they did not know.
The identical question here involved was decided by the Supreme Court of Mississippi in 1945 in the case of Evans v. Brown, 198 Miss. 237, 21 So.2d 588.
This rule is recognized in our chief authority on divorce and separation in Mississippi being the work of Judge Amis on such subject as shown in Sec. 246 thereof as follows: Amis, Divorce and Separation in Mississippi: "If the averments be contained in the bill or petition, the affidavit appended thereto must be broad enough to cover all the facts alleged therein. Thus in a bill for divorce, the required statutory affidavit that the bill `is not filed by collusion with the defendant for the purpose of obtaining a divorce, but that the cause or causes for divorce stated in the bill are true as stated', would not be sufficient to authorize publication to be made. Code 1930 Section 1416. In all cases where the post office is stated in the affidavit or sworn bill the clerk must send a copy of the notice by mail to the defendant whether any street address be given or not."
Not only is this a requirement of the statute but the Mississippi Court has recognized that a compliance with the statute is necessary in order to conform to the constitutional provisions of both the Mississippi and United States Constitution as to due process. This was determined in the case of Burns v. Burns, 133 Miss. 485, 97 So. 814.
A case involving publication which was also void is that of Paepoke-Leicht Lbr. Co. v. Savage, 137 Miss. 11, 101 So. 709.
The general rule as applied to divorce proceedings is set forth in 27 C.J.S. 825: "Section 173. Collateral Attack. (a) In General. The general rule is that a divorce decree regular and not void on its face, rendered by a court having jurisdiction of the parties and the subject matter, cannot be collaterally attacked; a decree, however, which is void for lack of jurisdiction may be so attacked, even after the marriage or death of the prevailing party, provided the jurisdictional defect affirmatively appears on the fact of the record.
"(b) Presumptions and Recitals. On a collateral attack upon a judgment or decree in a divorce proceeding all reasonable intendments and presumptions are taken in favor of the decree sought to be impeached. Thus, in the absence of showing to the contrary, it will be presumed in favor of the validity of a decree that the court rendering it had jurisdiction, especially where the decree has existed unassailed for a long period of time. However, the presumptions in favor of a divorce decree cannot be invoked where the recital of the decree is contradicted by the record: and no intendment of law or presumption of fact can be made in favor of the jurisdiction where the statute purporting to confer it is void."
This general rule is also recognized in 17 Am. Jur. 392: "Section 481. Judgments Void for Want of Jurisdiction. — A judgment or decree of divorce which is void for want of jurisdiction is generally subject to collateral attack, notwithstanding a subsequent marriage or the death of the party by whom the divorce is procured."
"Section 484. Strangers. — It is generally held that mere strangers to a divorce decree will not be heard to attack it collaterally, at least upon any ground other than lack of jurisdiction."
The same Mississippi authority cited above, Amis on Divorce and Separation in Mississippi, on page 428, Sec. 304, states the rule as to such decrees in Mississippi to be as follows: "Section 304. — Direct and collateral attack of divorce decree. — A direct attack on a judgment or decree is a proceeding whereby it is sought to amend, correct or vacate it, or to enjoin or prevent its execution. A collateral attack, however, is such a proceeding as either ignores such judgment or decree, or else impeaches it as being a nullity without any force or effect in that particular case, but does not seek to have it set aside and declared void ab initio. McKiney v. Adams, 50 So. 574."
"And in all cases a judgment or decree of any court may be attacked collaterally, as well as directly, for fraud in its procurement, practiced on the defendant, or on the jurisdiction of the court, by proof aliunde the record, as well as for any jurisdictional defects that may appear in the record of the proceedings. McCeraney v. Railroad Co., 128 Miss. 248, 90 So. 881; Richardson v. Brooks, 52 Miss. 118; Christian v. O'Neal, 46 Miss. 669; Plummer v. Plummer, 37 Miss. 185."
Another illustration of the application of this rule is the case of Theobald v. Deslonde, 93 Miss. 208, 46 So. 712. See also the cases of Lake v. Perry, 95 Miss. 550, 49 So. 569; Stephenson v. New Orleans N.E.R.R. Co., 180 Miss. 147, 177 So. 509; Hemphill v. Hemphill, 34 Miss. 68.
In this case not only does the record of the proceeding show on its face that the same is void, but affirmative proof has been made by a certificate introduced under the provisions of our Mississippi statute that the chancery clerk has diligently searched the proceeding in his office and that no other affidavit whatsoever was filed in the proceeding. This is also borne out by the testimony of the attorney for Lorene Triplett Rushing, and hence is affirmatively proved by the evidence in this cause. There is no recitation of fact anywhere in the proceeding to the contrary but the invalidity affirmatively appears from the proceedings themselves on the face thereof.
In addition to being void for matters on the face of the record this purported divorce decree which Lorene Triplett Rushing attempted to obtain was void because a fraud was committed on the jurisdiction of the court. This, of itself alone, rendered the judgment, or decree, null and void ab initio and such fraud may be shown by matters not evident from the record and the decree is subject to collateral attack at any time.
The general rule on this point was stated by this Court in the case of Lamar v. Houston, 183 Miss. 260, 184 So. 293.
Our statute requires the complaint to be filed in the county where the complainant resides in case the defendant be absent or a nonresident. This is provided in Sec. 2738 Code 1942.
Regarding this statute Judge Amis commented in Sec. 240 of his treatise on Divorce, which section is entitled "Jurisdiction of the Subject Matter in Divorce", as follows: "The jurisdiction to grant a divorce is wholly statutory, and this statute declares what particular chancery court shall have jurisdiction for the purpose of granting a divorce. True it is that the Constitution confers on the chancery court full jurisdiction in all matters of divorce and alimony; but that does not mean that each chancery court shall have jurisdiction of all divorce cases in the state, but only of such cases and under such conditions as may be prescribed by statute. It follows that the statute prescribing where the suit must be instituted is not a mere statute of venue that may be waived, but one of jurisdiction of the subject matter of the suit; because in such a case there may not be any change of venue from one court to another. Code 1930, Sec. 365. There are decisions in other states to the contrary but they are based on their own peculiar statutes. 19 C.J. 34, et seq. The original bill in each case should therefore aver such facts as to show that the particular court has jurisdiction of the subject matter of the suit. May v. May, 158 Miss. 68, 130 So. 52." In the case at bar it is clear and undisputed that when Lorene Triplett Rushing filed her suit for divorce in Leake County, Mississippi, she was a resident of Neshoba County, Mississippi, and therefore the chancery court of Leake County was without jurisdiction of the subject matter. No false allegation or consent of the parties even, could ever bestow jurisdiction on the Leake County court. Lorene testified that the allegation of residence in Leake County in her behalf was wrong, and that she was "living here, this was my home". This had reference to Philadelphia, in Neshoba County, where she had actually resided and made her home with the decedent John T. Billups since 1942.
A few additional Mississippi cases in point on the collateral attack question under the circumstances as involved in this case are cited as follows: McCraney, et al. v. N.O. N.E.R.R. Co., 128 Miss. 248, 90 So. 881; Plummer v. Plummer, 37 Miss. 185; Wilson v. McCorkle, 135 Miss. 525, 99 So. 366; In re Goldberg, 288 Ill. App. 203, 5 N.E.2d 863, which the United States Supreme Court refused to review on certiorari, 302 U.S. 693, 82 L.Ed. 535.
III. The appeal of Lorene Triplett was to the wrong county.
"An appeal is solely a statutory right, and, in the absence of fraud or fault on the part of the opposing litigant who has secured a judgment or decree in his favor, the party desiring to appeal therefrom must pursue the method and remedy provided by statute." McClanahan v. O'Donnell, supra.
In this case the rule is found in Sec. 20 of the Act, as follows: "Court Review of Compensation Award. The final award of the commission shall be conclusive and binding unless either party to the controversy shall within thirty days from the date of its filing in the office of the commission and notification to the parties appeal therefrom to the circuit court of the county in which the injury occurred. . . ." The defect in this case is that the appeal was taken to the circuit court of Neshoba County by Lorene Triplett Billups instead of the circuit court of Jasper County. The failure to comply with the statute is obvious. The attorney realized this and after the time allowed for appeal had elapsed, attempted to remedy the error by an ex parte amendment, wherein he wrote the name of the county in ink as Jasper, striking out the name Neshoba. This very matter was raised and the facts are not disputed. The lower court adjudicated such facts to be correct but held that the change was "immaterial". It is evident that this decision conflicts with the above quoted decision and rule of law and if an amendment to the required notice of appeal may be given after the time allowed for appeal has elapsed, so as to change the appeal to a different court entirely, then there is an end of the requirement that an appellant must pursue the method and remedy provided by statute, and there would be an end to the statute of limitations involved as to such appeals.
Sanford Alford, for appellees.
I. The lower court had the authority to award a lump sum settlement.
The appellants appealed from the Commission's order awarding Fannie Billups Moore compensation as the dependent mother upon the grounds that she was not wholly dependent upon her son, John T. Billups, and after the decision rendered in the case of Deemer Lbr. Co. v. Hamilton, 52 So.2d 634, defining the word "dependent" as used in the Workmen's Compensation Act, this case was submitted to the circuit judge at Bay Springs, Mississippi, upon the motion to dismiss the appeal of the employer and carrier as to the award of Fannie Billups Moore, we, as her attorneys, requested the court to maintain its jurisdiction for the purpose of awarding the attorneys' fees and in the discussion with the judge, and the attorney representing the appellants, the financial and physical condition of Fannie Billups Moore, as it appears in the record, was discussed, and the attorney representing the appellants was asked if he would agree to a lump sum settlement, and he advised the court that "he was without authority to agree, but that he had no objection", and the court after being fully advised of her condition, and being advised by the appellant's attorney that he had no objection to a lump sum settlement, the contents of the judge's order was given orally and we were instructed to prepare the order accordingly.
On a later date we went to the office of the attorney representing the appellants and he dictated the orders which were approved as to form, by all of the attorneys, and mailed to Judge Homer Currie, for his signature, in August, 1951.
We contend the circuit judge has the authority to render a lump sum settlement in this case under the circumstances and under the law. United States Fidelity Guaranty Co. v. Smith, 52 So.2d 351.
II. The court was correct in its finding that Lorene Billups was entitled to compensation as the dependent widow of John T. Billups, deceased.
Where no jurisdictional defects appear of record, the final judgment of a court of general jurisdiction carries with it the presumption that all things were done, that were necessary or proper to be done, and hence may not be collaterally impeached for mere irregularities, yet the requirements of the statutes in divorce matters are such that the rule might be varied to some extent, if presented for adjudication. Sec. 305, Amis, Divorce and Separation in Mississippi.
There has been no petition filed in the chancery court of Leake County to set aside and vacate that decree of divorce and if such petition were filed by any person other than Alvin Rushing, they would be a stranger thereto, and therefore, cannot attack a decree of divorce on the grounds of fraud. Sikes v. Sikes, et al., 139 So. 853; Kirby v. Kent, 160 So. 569.
Where a judgment of a court of general jurisdiction is attacked collaterally, unless the contrary affirmatively appears from the record, all jurisdictional facts are conclusively presumed to have existed, whether there are recitals in the record to show them or not; and this rule applies, although the judgment attacked was rendered by default, on constructive service of process alleged to be defective. Cotton v. Harlan, 87 So. 152; Hester v. Hester, 60 So. 569; Kirby v. Kent, 160 So. 569; Cratin v. Cratin, 174 So. 255; Stanley v. Stanley, 29 So. 641; Tyler v. Aspinwall, 54 L.R.A. 7758.
III. The notice of appeal of Lorene Billups from the decision of the Workmen's Compensation Commission was sufficient.
In the copying of Sec. 20 of the Workmen's Compensation Act, the appellants copied only the first paragraph, therefore, we are furnishing the part of the second paragraph that applies to this case: "Such appeal may be taken by filing notice of appeal with the commission, whereupon the commission shall under its certificate transmit to the circuit court of the county where the injury occurred all documents and all papers filed in the matter and etc." We contend that the notice setting forth Neshoba County was not binding on the commission, the duty was upon the commission to file the appeal in the county where the injury occurred. The law states that the appeal may be taken by filing notice and does not say what notice, the county designated in the notice is merely a typographical error.
On this appeal we are asked to review the action of the circuit court in commuting into a lump sum payment an award made by the Workmen's Compensation Commission, payable in installments, to Fannie Billups Moore, the dependent mother of a deceased employee of the appellant E.W. Stephens, and in making an award, which had been denied in the order of the Commission, to Lorene Triplett Billups, the alleged wife of the deceased employee.
The employee, John T. Billups, was accidentally killed in the course of his employment while working for the appellant E.W. Stephens on January 18, 1950. (Hn 1) Therefore, the two claims in question are governed by Chapter 354, Laws of 1948, instead of Chapter 412, Laws of 1950, amendatory thereof, which was not approved until April 6, 1950, after the death of the said employee.
Other alleged wives of the employee were claimants of the death benefit, but only the employer and his insurance carrier have prosecuted an appeal from the above-mentioned judgment of the circuit court.
The provision of subsection (j) of Section 13, Chapter 412, Laws of 1950, to the effect that "The commission shall be the sole judge as to whether or not a lump sum payment shall be to the best interest of the injured worker or his dependents", is not contained in Chapter 354, Laws of 1948. In construing the original Workmen's Compensation Act, Chapter 354, Laws of 1948, in the case of United States Fidelity Guaranty Co. v. Smith, 211 Miss. 573, 52 So.2d 351, where the Commission had disallowed a claim entirely, we affirmed the action of the circuit court in the allowance thereof and in commuting into a lump-sum payment the award of the death benefit, the right of the circuit court to order the award made by it paid in a lump sum not having been questioned on that appeal.
However, (Hn 2) in the instant case the mother of the deceased employee did not appeal from the award made her by the Commission, payable in installments as aforesaid. The employer and his insurance carrier appealed to the circuit court only from the act of the Commission in making this award, but they filed a motion therein to dismiss their appeal. However, the reputed wife, Lorene Triplett Billups, whose claim for any death benefit had been denied by the Commission, was present to prosecute her appeal in the circuit court.
The employer and the insurance carrier had the right to refrain from prosecuting their appeal to the circuit court and to dismiss the same as to the award made by the Commission to the dependent mother, but without prejudice to the right of such court to make an allowance of attorneys' fees, as provided for under Section 26, Chapter 354, Laws of 1948, and the question then arises as to whether or not the circuit court had the right to hear evidence as to whether or not this award to the dependent mother of the deceased employee should be wholly computed into a lump sum payment. We think not. Section 20 of Chapter 354, Laws of 1948, which governs in this case, as well as said Section in Chapter 412, Laws of 1950, expressly provides that: "Appeals shall be considered only upon the record as made before the commission. * * * The circuit court shall review all questions of law and of fact. * * * If prejudicial error be found, the same shall be reversed and the circuit court shall enter such judgment or award as the commission should have entered. * * *" This, of course, presupposes that the error appears from the record. In the instant case there was nothing in the record to indicate error on the part of the Commission in not commuting the award into a lump-sum payment.
On the second issue, Lorene Triplett Billups, the reputed widow of the deceased employee, and two of his other alleged wives appealed to the circuit court from an order of the Commission, denying their claims, and the order of the Commission was reversed only to the extent that it had disallowed the claim of the said Lorene Triplett Billups.
The decedent, John T. Billups, celebrated a ceremonial marriage with Amy (Annie) Patrick on February 1, 1926. He celebrated another such marriage with Mae Ettie Turner on May 12, 1934, and one with Willie Flora Earnest on May 1, 1936, one with Lorene Triplett on June 27, 1942, again on December 3, 1946, and again on October 6, 1948.
John and his first wife, Amy, lived together only a short time before they finally separated, and neither of them then obtained a divorce. His second wife, Mae Ettie Turner, died at some time between 1934 and 1936. His third wife, Willie Flora Earnest, separated from him, obtained a divorce, and remarried. She appeared at one of the hearings prior to the appeal to the circuit court and disclaimed any interest in the subject matter of the controversy. His fourth wife, Lorene Triplett, lived with him from the time of their first marriage to one another until his death on January 18, 1950, although one Lucile Epting claimed that at some time during this period she lived with John as a common-law wife, but failed to establish her claim to the satisfaction of the Commission and has not appealed.
It appears that shortly after the first of John's three marriages to Lorene Triplett he was inducted into the army. Thereupon Amy Patrick Billups recalled that she had several years prior thereto become married to John and that they had not been divorced; and whereupon she made application for and received an allotment from the federal government. Upon being advised of this fact, John filed a suit for divorce against her in the chancery court of Neshoba County and finally obtained a divorce from her soon after being released from the army in December 1945. Then, as hereinbefore stated, he and Lorene Triplett celebrated their second marriage on December 3, 1946.
This second marriage of Lorene to John would have been valid except for the fact that it then occurred to Lorene that she needed a divorce from her former husband, Alvin Rushing, who then resided in California.
Consequently, Lorene left her home at Philadelphia, in Neshoba County, where she resided with John, went to Leake County and filed a suit for divorce against Alvin on the ground of his alleged cruel and inhuman treatment of her, and stated in her bill of complaint that she was then a resident citizen of Leake County, although she testified before the Commission that she actually lived at Philadelphia at that time, and on cross-examination she explained the erroneous allegation of her bill as to being a resident citizen of Leake County, by saying, "I had to say that was my home to get a divorce there, didn't I?" but further explained, "I went back there and put in for my divorce because that was where I married him at, and I thought I had to go back there to file for it."
However, the affidavit which she made to her bill of complaint merely stated in substance that she had personally appeared before the chancery clerk and after being first duly sworn stated "upon her oath that she is complaining in the foregoing bill; and that this bill is not filed by a collusion with the defendant therein for the purpose of obtaining a divorce, but that the ground for divorce therein stated is actually true". Thus it will be seen that the affidavit is to no fact except that the bill of complaint is not filed by collusion and that the ground for divorce — the alleged cruel and inhuman treatment therein stated — is actually true. The nonresidence of the defendant, his post-office address and street address whether known or unknown, is not a ground for divorce. The affidavit is not as to the nonresidence of the defendant Alvin Rushing, who was then in California, or as to his post-office or street address, or as to the failure of the complainant to ascertain same from diligent search and inquiry. In other words, if there was no other affidavit, than the one above mentioned, ever filed in the cause as a foundation for process by publication, the question of the validity of the divorce obtained by Lorene on February 10, 1948 in Leake County, is controlled in all of its essential particulars by the case of Evans v. Brown, 198 Miss. 237, 21 So.2d 588, which held that a divorce obtained on publication of process upon only such an affidavit was invalid. A certificate of the chancery clerk of Leake County dated April 26, 1950, discloses that he had examined the records of his office and failed to find any other affidavit filed in the case of Lorene Triplett Rushing v. Alvin Rushing by Lorene, or on her behalf, as to the nonresidence of the defendant.
A certified copy of these divorce proceedings in Leake County was introduced in evidence before the Workmen's Compensation Commission by the attorneys for the appellants, and without objection on the part of the appellees. They were introduced as a collateral attack upon the validity of the divorce decree rendered in favor of the complainant therein on February 10, 1948, and for the purpose of defeating the claim of Lorene Triplett Billups for the death benefits as the alleged widow of the deceased employee. The decree which is the subject of that collateral attack recites, among other things, that "this cause came on to be heard on bill of complaint, and on due process upon the defendant, and upon oral testimony". It further recites that "the court, having fully examined the pleadings and process, finds that it has jurisdiction of the subject matter and of the parties; * * *." It then proceeds to adjudicate that the defendant Alvin Rushing was guilty of the wrongs charged against him in the bill of complaint and that the complainant Lorene Triplett Rushing was entitled to the decree of divorce, which was granted. In other words, the decree is not void on its face; its invalidity would depend upon the insufficiency of the affidavit for nonresident process hereinbefore discussed in the next preceding paragraph, if there was no other and sufficient affidavit filed in the cause. The certificate of the chancery clerk of Leake County referred to in such paragraph is no part of the certified copy of the divorce proceedings. It was not made until nearly two years after the rendition of the divorce decree. The attorney who conducted the divorce proceedings for the complainant, and who had recently checked the original court file on the case, was asked as a witness at the hearing as to whether or not the file contained all the papers and pleadings that were filed in that suit, and his reply was, "Well, I wouldn't say positively there were no more filed, but it does contain the bill of complaint, with the statutory oath affixed thereto * * * and proof of publication * * *". It, of course, contained the decree of divorce as shown by the certified copy of the proceedings then being introduced in evidence.
(Hn 3) It is to be conceded that the certificate of the clerk, hereinbefore referred to, would have been competent and of probative value to show circumstantially that since there was no other affidavit on file in his office on April 26, 1950, when he examined the records of his office, no other affidavit than that attached to the bill of complaint was ever filed. But as against this there is the recital in the decree that the court had fully examined the pleadings and process and had found that it had jurisdiction of the subject matter and of the parties. Since the affidavit was not required to be recorded, it may, unlike the recordation of an instrument, become misplaced, and hence the fact that a loose paper is not in a court file is not conclusive proof that the same was never filed. The certificate is therefore entitled to only such weight as, in the nature of the case, it should receive.
In the case of Brotherhood of Ry. Trainmen v. Agnew, 170 Miss. 604, 155 So. 205, it was held to be the primary duty of a court, before proceeding, to determine whether it has jurisdiction both of the subject matter and the parties; that the court is under the duty to examine the process and the returns thereon, and determine whether the process and the manner of service thereof was such as to give the defendant the notice required by law.
In the case of Cotton v. Harlan, 124 Miss. 691, 87 So. 152, it was held that: "Whether or not the judgment creditor filed with the justice of the peace in the attachment proceeding the affidavit required by the statute, setting forth the post office of the defendant therein, or the creditor's failure to ascertain it, cannot be inquired into here, for the reason that the court of a justice of the peace is a court of record and of general jurisdiction. Brian v. Davidson, 25 Miss. 213; Stevens v. Mangum, 27 Miss. 481; Vicksburg Grocery Co. v. Brennan, 20 So. 845. And where a judgment of such a court is attacked collaterally, as in the case here (McKinney v. Adams, 95 Miss. 832, 50 So. 474), unless the contrary affirmatively appears from the record, all jurisdictional facts are conclusively presumed to have existed, whether there are recitals in the record to show them or not. Cooley's Constitutional Limitations, 406; Ames v. Williams, 72 Miss. 760, 17 So. 762; Gillespie v. Hauenstein, 72 Miss. 838, 17 So. 602; * * * Allen v. Dicken, 63 Miss. 91; Kelly v. Harrison, 69 Miss. 856, 12 So. 261." See also Cason v. Cason, 31 Miss. 578; Cannon v. Cooper, 39 Miss. 784; Hester v. Hester, 103 Miss. 13, 60 So. 6; Chambliss v. Chambliss, 182 Miss. 480, 181 So. 715; and 27 C.J.S., Divorce, Sec. 173, p. 825.
Moreover, in the case of Whitley v. Towle, 163 Miss. 418, 425, 141 So. 571, 572, the Court said: "Appellant contends in the third place that the record herein fails to show that the summons to appellee, to appear before the chancellor at the time and place hereinbefore mentioned, was served on appellee — the return of the service is missing from the record. In a direct attack on a decree it is, of course, competent to show that there was no service of the summons, but in a collateral attack, as is here made, unless the record affirmatively shows to the contrary, all jurisdictional facts are conclusively presumed to have existed, including the proper service of process. It is not enough that the return of service is merely missing from the record — and that is all that is shown here. This exact point was settled in Federal Reserve Bank of St. Louis v. Wall, 138 Miss. 204, 103 So. 5."
In the case of Federal Reserve Bank of St. Louis v. Wall, supra, the Court said: "The attack here made on the judgment in the attachment issue is a collateral one, and in such an attack all jurisdictional facts necessary to support the judgment in the absence of evidence to the contrary `are conclusively presumed to have existed, whether there are recitals in the record to show them or not.' Cotton v. Harlan, 124 Miss. [691] 696, 87 So. 152. Moreover, the judgment expressly adjudicates that it appeared to the court, which rendered it, that the defendant had been personally served with the process, and that adjudication is conclusive in a collateral attack; for in such an attack, whether the court had the proper evidence before it on which to base an adjudication that the defendant had been served with process cannot be inquired into. Cocks v. Simmons, 57 Miss. 183."
The collateral attack here is made by the appellants on the further ground that the decree of divorce was void and subject to collateral attack for fraud in that Lorene Triplett Rushing alleged in her bill of complaint that she was a resident citizen of Leake County, whereas she then resided in Neshoba County. But in view of her explanation in regard thereto as mentioned in paragraph 12 of this opinion, and her testimony that she was born and reared in Leake County and that Alvin Rushing had always lived there before their separation and his removal to California, there was no clear and convincing proof of actual fraud on her part in filing her suit there.
We have reached the conclusion that since the decree of divorce granted February 10, 1948, in Leake County is not void on its face for want of jurisdiction of the subject matter and of the parties, but recites the necessary jurisdictional facts to constitute a good and valid decree of divorce, the same is sufficient to render valid the third ceremonial marriage between Lorene Triplett Rushing and John T. Billups, the deceased employee, and that since this couple lived together continuously from 1942 until the employee's death in January 1950, she is entitled to the death benefit awarded her as his widow under the definition of a "widow" in subsection 14 of Section 2, Chapter 354, Laws 1948.
The case is, therefore, affirmed as to the award to Fannie Billups Moore, the dependent mother of the deceased employee, but reversed and remanded as to the action of the circuit court in commuting the award to her into a lump-sum payment, and affirmed as to the award in favor of the appellee Lorene Triplett Billups.
Affirmed in part, reversed in part, and remanded.
Alexander, Lee, Kyle and Ethridge, JJ., concur.
ON SUGGESTION of ERROR July 17, 1952 (59 So.2d 846)
The suggestion of error herein was assigned to a judge other than the writer of this opinion and was by him presented to the conference of all the members of the Court. Upon the conclusion being reached that the suggestion of error should be overruled, the writer of the original opinion was requested to write a response to the suggestion of error, which is directed to the alleged error of the Court in not holding that the decree of divorce granted on February 10, 1948, in favor of Lorene Triplett Rushing against Alvin Rushing by the Chancery Court of Leake County, was void on the ground that the proof before the Workmen's Compensation Commission disclosed at the time she obtained the said decree of divorce she was a resident citizen of the City of Philadelphia in Neshoba County, whereas she alleged in her bill of complaint in Leake County for the purpose of obtaining a divorce against her former husband, Alvin Rushing, a nonresident of the state, that she was then a resident citizen of Leake County.
The issue of whether or not Lorene Triplett Rushing was a resident citizen of Leake County, Mississippi, at the time she filed the suit for and obtained her divorce from Alvin Rushing was necessarily decided by the chancellor who granted the decree of divorce. He had before him her bill of complaint which expressly alleged that the "complainant is an adult resident citizen of Leake County, Mississippi, and has resided in said state all of her life." The decree rendered by the chancellor when granting the decree of divorce expressly recited that the cause came on to be heard "on due process upon the defendant, and upon oral testimony. And the court, having fully examined the pleadings and process, finds that it has jurisdiction of the subject matter and of the parties; * * *." The court necessarily found that the proof sustained the allegations of the bill of complaint and that the cause had been filed in the proper venue under the allegations of the bill of complaint and upon the oral testimony before the chancellor. And we find nothing in the record of the entire proceedings in that cause, a certified copy of which was introduced in evidence in the instant case, which shows affirmatively that the case was not filed in the proper venue or that the court did not have jurisdiction both of the parties and of the subject matter, and hence, the decree is not void on the face of the record in the divorce proceeding, and we are not justified in declaring the decree invalid on collateral attack.
What was said in the original opinion herein in paragraphs 11, 12, 20 and 21 thereof, was primarily in response to the contention of the appellants in their original briefs that Lorene Triplett Billups, the reputed widow of the deceased employee, was guilty of actual fraud in the procurement of her decree of divorce against Alvin Rushing in a county other than that of her residence. The suggestion of error does not challenge the correctness of our conclusion as set forth in paragraphs 12 and 20 of the original opinion on that issue, but the contention now is that we should have held that the marriage of Lorene Triplett Rushing to John T. Billups, subsequent to her divorce decree of February 10, 1948, from Alvin Rushing was obtained at least by constructive fraud, and the case of Wilson v. McCorkle, 135 Miss. 525, 99 So. 366 is relied on in support of that contention. But as hereinbefore stated, the Court is of the opinion that the question of the proper venue of the case of the divorce suit between Lorene Triplett Rushing and Alvin Rushing was for the decision of the chancellor who heard the case, and we must assume that the proof then supported the allegation in the bill of complaint as to her then place of residence and established the then proper venue, since there is nothing in the record of the proceedings of that case to the contrary.
Suggestion of error overruled.
All judges concur.