Green v. Whatley , 158 Ga. 628 ( 1924 )

Beck; P. J.

(After stating the foregoing facts.)

The defendants in error filed a motion to dismiss the bill of exceptions, upon the ground that it contains the following recital: “The record of the marriage of Luella Whatley to Will Bailey, in Walker County, Georgia, was admitted in evidence,” and that there is no incorporation of this record in the bill of exceptions over the trial judge’s certificate, and no identification of this documentary evidence. This ground of the motion is without merit. For whether or not there is any evidence contained in the record of the marriage of Luella Whatley to Will Bailey, that fact sufficiently appears from the pleadings of the plaintiff. It is not a question as to whether there was a ceremonial marriage between Luella Whatley and Will Bailey, but the question is as to whether that marriage was void oil the ground that there was a prior marriage of the defendant in error to Whatley which had not been dissolved by a legal decree of divorce.

Another ground of the motion to dismiss is that the documentary evidence, “not being incorporated in the bill of exceptions, cannot be considered by the court.” Whether this documentary evidence can be considered or not, there is enough evidence prop•erly incorporated in the bill of exceptions to illustrate the real issue in the case; that is, the question of the legality of the marriage of Luella Whatley to Will Bailey.

The third ground of the motion to dismiss is based upon the insufficiency of the assignment of error. We are of the opinion that the assignment of error is sufficient to present the question of error in the court’s ruling in directing the verdict and in disallowing the amendment to the petition. The assignment of error is sufficient upon the direction of the verdict and the dis-allowance of the amendment. In the motion to dismiss it is said that, “Of course, the court did not direct a verdict, but simply nonsuited, etc.” The record and the recitals in the bill of exceptions show, however, that a verdict was directed, and this is excepted to. The disallowance of the amendment is also excepted to. The motion to dismiss is overruled.

We are of the opinion that the court erred in refusing to allow the amendment offered in this case. If thejillegations in the amendment are true, the decree of divorce dissolving the marriage of Luella Whatley to her first husband was void. If these allegations are true, the decree of divorce was obtained by fraud, and was a nullity. Goolsby v. State, 24 Ga. App. 377 (100 S. E. 788). That is distinctly recognized in the case of Hood v. Hood, 143 Ga. 616 (85 S. E. 849), although it is ruled in the Hood case that a collateral attack could not be made upon the judgment; and to that ruling we shall refer later. See also, in this connection, the ease of Portman v. Mobley, 158 Ga. 269 (123 S. E. 695). Not only could the decree of divorce in this case be attacked upon the grounds set forth in this amendment which was disallowed, but could be attacked collaterally. In the ease of Matthews v. Matthews, 139 Ga. 123 (76 S. E. 855), it was said: “A judgment of divorce of another State, based on constructive service, is not within the provision of the constitution of the United States, and statutes passed thereunder, requiring that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. A judgment of divorce rendered by a court of Alabama against a non-resident defendant, wherein a child of the marriage is awarded to the plaintiff’s custody, based entirely on constructive service by publication, without actual notice or provision’for the same to the non-resident defendant, will not be regarded as a conclusive adjudication of disposition of the. child, where the evidence shows that the judgment was obtained by fraudulent representations in order to obtain jurisdiction.” And in the case of Solomon v. Solomon, 140 Ga. 379 (78 S. E. 1079), it was said: “A judgment of divorce, based on constructive service, is not within the provisions of the constitution of the United States and statutes passed thereunder, requiring that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. Such judgment, based entirely on constructive notice, without actual notice or provision for the same to the non-resident defendant, may be collaterally attacked for fraud.” Other cases from other courts could be cited, laying down the same doctrine, but we deem it unnecessary to collect and cite those cases, in view of our own decisions. Defendant in error relies upon the ease of Hood v. Hood, supra. It was there held that a collateral attack upon the judgment of divorce would not be allowed in that case; but the decree of divorce in the Hood case was rendered by a court in this State, and in that respect it differs from the case at bar and the cases of Matthews and Solomon, cited above; and that is a sound ground of distinction between the Hood ease and the two other Georgia cases cited; for while, as was held in the Hood case, a collateral attack upon a judgment such as that in question here will not be allowed where the judgment sought to be impeached was rendered in one of the courts of this State, it will be allowed, as was held in the other two cases, where the judgment was rendered in a court of another State, in order that a suitor in one of the courts of this State may not be compelled to leave the State and submit himself - to the jurisdiction of a foreign court in order to have set aside a judgment that was obtained by fraud.

Judgment reversed.

All the Justices concur, except Russell, Q. J., dissenting.