Laird v. State

I do not purpose to discuss the question of reinstatement, but wish to say that I agree with the conclusion reached by Judge Harper that the dismissal was error. I deem it unnecessary to give my own views in regard to the reasons. His conclusion is correct.

I am persuaded that this judgment ought to have been reversed. Making a brief statement, the record discloses that appellant came to Texas from New York, leaving there on the 11th day of December. On the 11th of the following September he filed his petition for divorce in one of the District Courts of Dallas County, being in Texas only nine months. This case was one of perjury based upon appellant's testimony in that case, in which he stated that he had been a bona fide resident of Texas for the required twelve months and in the County of Dallas for the requisite six months. A divorce judgment was thereupon entered. It seems further that the wife had not been in Texas but was a resident of New York at the time the petition for divorce was filed. She was cited, it seems, by publication.

Article 4632, Revised Statutes, as amended by the Act of the Legislature, 1913, page 183, provides that no divorce shall be granted in this State unless the party is a bona fide resident of this State and has been for twelve months prior to instituting divorce proceedings, and of the county in which the suit is filed for six months prior to filing the suit. So far as the writer has been able to ascertain, a judgment of divorce obtained in this State is a nullity, and, therefore, void without the necessary residence. I do not purpose to discuss the case cited by Judge Harper wherein the judgment was had in a probate court and under which subsequently a sale of property occurred and that property became involved in litigation. The court held the probate judgment could not be attacked in collateral proceedings under the facts stated in that case. Those interested in reading the opinion he cites may do so, but it has no application to this case as will be evidenced by its perusal. It has been always regarded an essential difference between the judgments of those courts of competent jurisdiction which in some way improperly act and those courts which have no jurisdiction. Such judgments are placed on different footings. I do not purpose now to discuss that question.

It is the law that wherever a citizen of one State seeks to secure a divorce in another State, he must become a bona fide resident of the State in which he seeks the divorce for the length of time and under the circumstances provided by the statutes of that State, and until this has been done no divorce proceedings can be instituted, and if instituted and judgment is obtained, it is a nullity. I will cite some of the authorities along this line: 9 Am. Eng. Ency. of Law, p. 734, and for cases collated see note 2. I also refer to 9 Am. Eng. Ency. of Law, pp. 741, 742, and notes for collated authorities. I also refer *Page 145

to 7 Standard Encyclopedia and Procedure, pp. 739 and 740, as to what it takes to constitute a resident and citizenship. I also refer to 7 vol. Am. Eng. Pleading and Practice, p. 146, as to what it takes to constitute an appearance. I also cite Emery v. State, 57 Tex.Crim. Rep.; Bell v. Bell, 181 U.S. 804 ; same case reported in 45 L.Ed., 805 ; Andrews v. Andrews, 188 U.S. 15 ; Strietwolf v. Strietwolf, 181 U.S. 179 . In addition I cite Wilson v. State, 10 S.W. Rep., 749 ; Lutcher v. Allen, 95 S.W. Rep., 572 ; Morgan v. Morgan, 21 S.W. Rep., 154 ; Chum v. Gray, 51 Tex. 114 ; Riders v. Burnett, 59 Tex. 581

[ 59 Tex. 581 ]; Norwood v. Cobb, 24 Tex. 554 ; 2 Black on Judgments, 927; 2 Freeman on Judgments, 580; 54 Iowa 429 ; 56 Ind. 263 ; 13 Bush. (Ky.), 318; 25 Minn. 29 ; 196 Mass. 329 ; 19 Neb., 706 ; 19 Kan. 451 ; 99 Mass. 267 . These matters were pretty thoroughly investigated and discussed in Emery v. State, supra, in an opinion by this court, and the same conclusion reached there that the writer believes to be correct and here maintains.

It will be observed with reference to such divorce matters, that they must be governed by State laws. The Acts of Congress have no force and are not applicable, — I mean as applying to granting divorces. It may be further stated that the State control of these matters is limited to citizens. The courts of Texas can not grant a divorce to citizens of other States. There must be not only residence but a bona fide domicile. On this question see cases collated in 9 Am. Eng. Ency. of Law, pages 741-742, in note 1. Also as to domicile being the test, see page 742, supra, and page 743, and also 7 Standard Encyclopedia

Procedure, pages 739-740. It may also be stated in this connection that appearance merely does not confer jurisdiction. Statutory requirements must be fully met and complied with, or the judgment is a nullity. 9 Am. Eng. Ency. of Law, p. 746, and notes. It would be useless to follow this question as to what it takes to constitute appearance. Consent can not confer jurisdiction. Such decrees are void. Douglass v. State, 58 Tex. Crim. 122 ; 42 Texas Civ. App. 478[ 42 Tex. Civ. App. 478 ]; 7 Standard Encyclopedia

Procedure, 807, note 23.

Without amplifying this phase of the matter further, I turn to another line of authorities which ought to be deemed now as fully settling the question adversely to the State. Ex parte Degner, 30 Texas Crim. App., 566, where a great number of cases are collated; the opinion having been written by Presiding Judge White; Ex parte Taylor, 34 Tex.Crim. Rep.; Ex parte Kerby, 35 Tex.Crim. Rep.; Ex parte Kerby, 35 Tex. Crim. 634 ; Ex parte Duncan, 42 Tex.Crim. Rep.; Ex parte Tinsley, 37 Tex.Crim. Rep.; Ex parte Lake, 37 Tex. Crim. 656 ; Parker's case, 35 Tex.Crim. Rep.; Juneman's case, 28 Texas Crim. App., 486; Ex parte Snodgrass, 43 Tex. Crim. 359 . These cases lay down the proposition that three things must concur and are absolutely necessary to the jurisdiction of the court or as jurisdictional matters: First, the court must have jurisdiction of the person; second, of the *Page 146

subject matter, and, third, power to render the particular judgment rendered, otherwise prosecution will be void as will also the judgment. All of these cases hold the jurisdiction of the person is essential to the validity of the proceedings, otherwise it is a nullity and void. This rule has been followed in Texas in all its history, commencing with Fleming v. Nall, 1 Tex. 246 ; see also 10 Tex. 335 , 66 Tex. 548 , 25 Texas Supp., 132, 9 Tex. 313

[ 9 Tex. 313 ], 24 Tex. 468 , 4 Texas Civ. App. 429[ 4 Tex. Civ. App. 429 ]. In 12 Encyclopedia of Pleading and Practice, page 179, this rule is stated: "It is an elementary principle, recognized in all the cases, that to give binding effect to a judgment of any court, whether of general or limited jurisdiction, it is essential that the court should have jurisdiction of the person as well as of the subject matter, and that a judgment which appears upon the face of the record to have been rendered without jurisdiction of the subject matter or of the person, or which may be shown to have been so rendered in cases where evidence upon the question is admissible, is absolutely void, no matter in what proceeding or in what action it may thereafter be set up or relied upon." This is supported by a great number of cases cited in the footnotes from many of the States in the Federal Union. Some of these are collated in Emery v. State, supra. This rule has been held to apply also where the court has not acquired jurisdiction of the person under necessary process or pleading, although in fact the accused was tried, citing Wilson v. State, 27 Texas Crim. App., 47; Garrett v. State, 37 Tex. Crim. 198 ; Lawrence v. State, 2 Texas Crim. App., 479. This is the settled rule where the court has not the authority to try the case. Cases supporting this proposition are also collated in Emery v. State, supra.

Under all these authorities the proposition may be safely asserted, that if the court had not acquired jurisdiction of the person or the subject matter, the judgment will be void. Article 4632, Revised Statutes, as amended by the Legislature, 1913, says, that no judgment for divorce shall be granted in this State unless the party seeking the divorce is a bona fide inhabitant for twelve months in the State, and in the county six months. The evidence in this case demonstrates that appellant had not been in the State but nine months at the time the suit was instituted, therefore the court was without jurisdiction as to his person and subject matter, and, of course, could not render a judgment.

There is another case I might notice in this connection against the proposition that the judgment is only voidable and can not be attacked in collateral proceedings. Ex parte Parker, 35 Tex. Crim. 12 . It is unnecessary to review that case at length or to state the matters in full. Parker was tried in Nueces County and convicted of homicide, his punishment being confinement in the penitentiary for the term of his life. In that case it was held that a writ of habeas corpus could be used to attack the validity of the judgment of the court, and that it is competent, notwithstanding the recitals in the judgment, to go behind the judgment and probe into the very truth of the matter as *Page 147

to whether an act done during the term was in fact done during the time recited by the record. Parker had been convicted, and the contention was made on trial of the writ of habeas corpus that the verdict was rendered after the adjournment by law of the term at which he was convicted The writ was granted, the case tried, and the matter investigated, all of which is shown by the report of the case. These matters I have set out a little more fully than I anticipated. One of the main questions in the instant case turned on whether the wife of the defendant, who testified in this case, was a competent witness against him. The majority opinion is based upon the theory that the court did not have jurisdiction; that is, appellant had not been a citizen for twelve months, and, therefore, the testimony of appellant to that effect before the court granting a divorce was false and constituted a basis for perjury. If the court had jurisdiction, it was not perjury, because appellant would have lived the requisite twelve months in Texas before exhibiting his application for a divorce. The perjury is predicated on appellant's testimony in the divorce case to the effect that he had lived in Texas the necessary statutory time in order to get the divorce. If it was true he had been a citizen of Texas as required by statute, the State has no case; there could be no perjury. The majority opinion holds that his testimony was false in showing jurisdictional facts; that the court had no jurisdiction to try the divorce case, or to entertain it, and yet it holds that the party is guilty of perjury in a proceeding over which the court had no authority or jurisdiction. If the judgment was valid, the divorce was properly granted and the wife could testify, because no longer his wife Her competency as a witness against her husband is predicated alone upon the proposition that appellant's testimony was the basis of the judgment. This being true, the wife was not divorced. There could be no divorce under the facts. She still labored under the incapacity as a witness, being the wife of the accused. Objection was interposed on the trial of the perjury case for the reasons stated. The court below should have sustained these objections, and this court should have reversed the case because the court below did not sustain objections to the wife's competency as a witness. The wife can not testify in Texas against her husband in perjury cases. She did not testify in the divorce case. She was not in Texas; she was in New York. The judgment is a nullity, first, because the court had no jurisdiction of the person, and his voluntary appearance under all the authorities did not confer jurisdiction. Consent could not confer jurisdiction. The sine qua non was the requisite residence. In order to have jurisdiction in this case the facts must be true that appellant had lived in Texas the necessary time. Second, it had no jurisdiction of the subject matter. The divorce proceedings were not maintainable in the District Court until the party had lived here the necessary time. The court did not have jurisdiction of the subject matter. There was no cause of action, and none could exist until the expiration of the twelve months; and, third, not having jurisdiction of the person or subject matter, the court was powerless to render *Page 148

a judgment on the facts. The authorities all sustain these propositions, so far as I am aware, and the question of the judgment being voidable does not enter into this case. It was void.

These are some of the reasons upon which I base my conclusions that the majority opinion is wrong in the affirmance.

I therefore respectfully enter my dissent.