# State ex rel. Futch v. Rockett > Supreme Court of Louisiana · March 22, 1915 · 136 La. 1091 URL: https://www.frixlaw.com/law-library/cases/7169491 ## Case - **Full name:** STATE ex rel. FUTCH v. ROCKETT In re FUTCH - **Court:** Supreme Court of Louisiana - **Decided:** March 22, 1915 - **Citations:** 136 La. 1091; 68 So. 189; 1915 La. LEXIS 1954 - **Precedential status:** Published - **Opinion:** On the merits - **Judges:** Monroe, Niell, See, South - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7169491 ## Opinion text On the Merits. [3] This court, as appears from article 85 of the Constitution, is vested with appellate jurisdiction which extends to, and is exclusive in, “all suits for divorce and separation from bed and board and to all matters arising therein,” and to “all matters of * * * custody of children” ; and the Courts, of Appeal have no jurisdiction, whether appellate or original, to review a judgment by a district court in such case. Hence though, upon the hearing of an application for habeas corpus, one of those courts should conclude that a district court had erred in giving the custody of a child to the one or the other of *1097 two litigants, it would have no jurisdiction to reverse the judgment and correct the error. In the instant case, however, our learned Brethren of the Gourt of Appeal devoted their attention to the inquiry whether, in contemplation of law, there had been any judgment rendered of which the party named as respondent in the suit was bound to take notice, and, as a result of that inquiry, reached the conclusion that the counsel by whom that party was thought to have been represented was without authority in the premises, and hence that the judgment granting the divorce as against her, and awarding the custody of the child to her husband, was, and is, an absolute nullity, which can be ignored whenever and wherever invoked. We make the following excerpts from the opinion of the court as indicating its view upon the question thus stated, to wit: “We were very much impressed by the contention of the able counsel tor the relator that a judgment could not be collaterally attacked except for nullities patent on the face of the record, but a careful investigation has convinced us that counsel’s contention is too broad. * * * We think that a party may attack a judgment sought to be enforced against him, for radical nullities at any time, in any way, and anywhere [citing authority]. “If the allegations in defendant’s answer are true, she was an absolute stranger to the proceeding which resulted in the judgment which constitutes the sole basis of the right which relator asserts in this case. If she was not cited, or if there was nothing equivalent to citation, the judgment is an absolute nullity. But, more than this, the record does not affirmatively disclose a valid judgment. It was rendered on default, and at the foot of the petition is indorsed the following: “ T hereby acknowledge that the defendant Homie R. Futch has been cited and served with the foregoing affidavit and order, in accordance with law, this February 27, 1914, and waived all legal delays. “ ‘[Signed] Lowell C. Butler, “ ‘Attorney for defendant.’ “The defendant in her answer, which is verified by her oath, declares, in effect, that no one had any authority to represent her in the divorce suit; that she had no service or citation in that case; and that she did not know that such a suit was pending until the institution of these proceedings. * * * “On the trial of the case an attempt was made to show the attorney’s authority by the following document: “‘Shreveport, La., Nov. 3,. 1913. “ ‘Mr. L. G. Butler, First National Bank, City —Dear Sir: My husband, J. N. Futch, is suing me for divorce. I authorize you to represent me in the matter and to sign all necessary papers for me. I am not making any fight against the suit. “ ‘Yours truly, “ ‘[Signed] Mrs. Evelyn Futch.’ “This document was presented to defendant while she was under cross-examination, and she was asked if she signed it. Her statement in regard to the matter is, substantially, that she did not write it, did not sign it, had never seen it, and that she had never used the name ‘Evelyn.’ An attempt was made to prove her signature by the relator, defendant’s former husband, who testified that the writing was that of his wife. On the other hand, her- father testified to the contrary. The document can, therefore, have no effect, for the reason that it is not proved. Defendant admits that she signed and sent by mail to Mr. Butler a paper which authorized him to represent her in a suit against her by her husband for abandonment. But let us assume, for the sake of the argument, that defendant’s testimony in regard to the document is untrue, and that she did sign it. The record shows that two days after it was dated, to wit, November 5, 1913, relator filed a suit against his wife for separation from bed and board, on the ground of abandonment, and that suit, from anything that appears to the contrary, is still pending in the first district court. In that suit Mr. Butler simply acknowledged service and citation. It is not contended that the attorney received any other authority from defendant except that given by this document. * * * On March 25, 1914, nearly four months after the above suit was filed, the relator filed one for an absolute divorce, on the ground of adultery. So, even if the defendant did write the document * * * and sign it with the assumed given name, it clearly related to the suit for separation, in which it was used, and cannot be made to do service in a different suit, based upon an entirely different cause of action, and containing allegations which, if established, would forever blast defendant’s character as a virtuous woman. We are clear that the judgment upon which relator bases his claim for the possession of the child is an absolute nullity.” Elsewhere in the opinion we find the following: “When defendant’s answer was filed, counsel for the relator, while urging that the court could not look beyond the face of the record for facts upon which to predicate the nullity of the judgment, and while urging this objection throughout the entire trial to all of the evidence dehirs the record to establish those facts, nev *1099 ertheless asked for a continuance of the trial until the testimony of Mr. Butler, the attorney who appears as the representative of the defendant, in the divorce suit, could be procured, and the trial was continued until the 29th of October [being a period of some 19 days].” Mr. Butler did not, however, testify in the case, and the testimony of Mrs. Putch to the effect that the letter of authorization signed by her (whether it be the one offered in evidence or another) was intended for the purposes of the suit for separation from bed and board on the ground of abandonment, instituted in November, 1913, and was not intended for the purposes of the suit for divorce on the ground of adultery, instituted in March, 1914, remains uncontradicted, and is strongly corroborated by other testimony, and by the facts that the conclusion to institute the suit last mentioned was reached long after any letter is said to have been written or signed by Mrs. Putch, and that no one suggests that she was ever informed of the change of purpose. We therefore concur in the view that the appearance, acknowledgment, and waiver purporting to have been made on behalf of Mrs. Putch in the divorce suit were unauthorized by her, and that she was not cited or represented in that suit, and hence that the judgment therein rendered was, and is, as absolutely null as though nonexistent, and that it is open to that objection whenever invoked or relied on. O. P. 206; Conery v. Rotchford, Brown & Co., 30 La. Ann. 693 ; King v. Pickett, 32 La. Ann. 1006 ; Conery v. Rotchford, Brown & Co., 34 La. Ann. 520 ; Walworth v. Stevenson, 24 La. Ann. 251 ; Decuir v. Decuir, 105 La. 484 , 29 South. 932 . It is therefore ordered that the judgment of the Court of Appeal, herein made the subject of review, be affirmed, and that this proceeding be dismissed at the cost of the relator. See dissenting opinion of O’NIELL, J., 68 South. .192. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7169491. Public record. Not legal advice.