Milner v. Gatlin

WILLSON, G. J. (after stating the facts as above). The trial court treated the part of the supplemental petition set out in the statement above to which he sustained an exception, as an offer by appellant to show by proof aliunde the record in the divorce case and the record of the proceedings to modify the judgment rendered in said case May 18, 1911, that the district court of Dallas county was without power to modify said judgment as he undertook to do by his order of August 20, 1912. That appellant acquiesced in that view of his said pleading is shown by the fact that he makes no complaint here of the action of said court in dismissing the suit. The contention here is that the trial court erred when he sustained said exception. Whether he did or not, viewing the pleading as he viewed it, we think depends upon the answers which should he made to questions hereinafter stated. If the answer to any one of those questions should be in the affirmative, we think the exception should have been overruled. 1. One of the questions presented by allegations in the part of the supplemental petition in question may be stated as follows: Was the district court of Dallas county without power, at a term subsequent to the one at which same was rendered, to so modify its decree of May 18, 1911, as to transfer the care and custody of the minor from appellant to appellee Mrs. Gatlin? In Hall v. Whipple, 145 S. W. 308, the Court of Civil Appeals for the First District approved the following as a correct statement of the law: “The right to and custody of a minor is a question over which courts of equity have jurisdiction, and an order of the district judge in relation thereto is always subject to modification or change upon a proper showing.” In Plummer v. Plummer, 154 S. W. 598, decided by this court, it was said: “The general doctrine is that the jurisdiction of the court over the custody and support of minor children in divorce cases where the divorce is granted is a continuing one, and the court may modify or alter its order for custody or maintenance originally made as new issues or the changed circumstances of the parties may arise.” [1] Construing the statement just quoted from the Plummer Case as a holding that the power to modify such an order was an ex- *619 elusive one, in that no other district court than the one granting the divorce could exercise it, the Court of Civil Appeals for the Fourth District challenged its correctness in Gazell v. Garcia, 187 S. W. 410. Nevertheless, that (the Gazeíl) Case supports the ruling of the trial court in this one, for it was there held that any district court has power, if the welfare of the minor, because of changed conditions, requires it, to so modify such an order'as to take the minor from the custody of one to whom he was awarded in divorce proceedings and place him in the custody of another person. As the writ of error applied for in the Gazell Case was refused, it is fair to assume that the Supreme Court concurred in the conclusion reached therein. [2] On the authority of the cases mentioned, and Wilson v. Elliott, 96 Tex. 472, 73 S. W. 946, 75 S. W. 368, 97 Am. St. Rep. 928, Ex parte Reeves, 100 Tex. 617, 103 S. W. 478, and Smith v. Long, 181 S. W. 478, we think the question stated should be answered in the negative. 2. Another question presented by the ruling of the trial court may be stated as follows: Assuming that service on appellant in this state of notice of the motion to so modify said decree of May 18,1911, was necessary to the exercise of such power by the Dallas county district court, did it appear that -appellant was entitled in this proceeding to deny that such service was had on him? The decree of August 20, 1912, contained a recital that “it appeared to the court that proper issuance and service of citation was had upon the said O. W. Milner, and that the said G. W. Milner, though duly cited to appear, came not,” etc. [3] In 23 Cyc. 1086, the rule believed to be applicable is stated as follows: “In the case of a judgment of a domestic court of general jurisdiction the great majority of the decisions sustain the rule that its recitals concerning the service of process or the other facts on which its jurisdiction is founded import absolute verity and cannot be contradicted or disproved in a collateral proceeding by any extrinsic evidence.” [4] There is no doubt the proceedings resulting in the judgment appealed from were “collateral” within the meaning of the rule (23 Cyc. 1062 et seq.; Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325); and hence there also is no doubt (unless, because of the doctrine announced in Pennoyer v. Neff, 95 U. S. 723, 24 L. Ed. 565, the rule does not apply to a defendant who was in fact a nonresident of the state at the time the suit against him was commenced and while it was being prosecuted) that appellant was not entitled to contradict the recital in the judgment as modified by proving by evidence de-hors the record that valid service of notice of the motion was not had on him. In Martin v. Burns, 80 Tex. 676, 16 S. W. 1072, the judgment in question was one for money. It was attacked as void because against a nonresident of the state on service on him of a citation by publication only. It appeared from the record that the citation by publication was on affidavit by the plaintiff that the residence of the.defendant in the judgment was unknown. It did not affirmatively appear from anything in the record that the defendant was a nonresident of the state. It was heljl that the validity of the judgment could not be impeached collaterally by proof aliunde showing that the defendant in fact was a nonresident. The court said: “This conclusion is not in conflict with the doctrine of Pennoyer v. Neff, but is based entirely upon the absolute presumptions which the law indulges in support of a judgment of domestic court of general jurisdiction and of the verity of its records. It must now be regarded as the settled rule of decision in this state that when applicable the chief principle announced in Pennoyer v. NefE will be observed, and that, when it affirmatively appears from the record that a purely personal judgment has been rendered against a nonresident, and citizen of another state, without appearance or waiver by him, upon citation by publication alone, or by process beyond the state, such judgment cannot be enforced and is subject to collateral attack. This is the extent to which the decisions in this state go.” As we understand, it, the ruling in the case first quoted from warrants a negative answer to the question we are discussing. The case has often been cited approvingly, and never so far as we have found disapprovingly, by the courts of this state. Among other cases citing it are these: Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325; Gillon v. Wear, 9 Tex. Civ. App. 44, 28 S. W. 1014; Brooks v. Powell, 29 S. W. 809; Hambel v. Davis, 33 S. W. 251; Iiams v. Root, 22 Tex. Civ. App. 413, 55 S. W. 411; Kilmer v. Brown, 28 Tex. Civ. App. 420, 67 S. W. 1090. In the Iiams-Root Case it was distinctly held that the validity of a judgment of a domestic court of general, jurisdiction could not be questioned by evidence aliunde the record of the case in which the judgment was rendered, showing that the defendant in the judgment was a nonresident of the state. The court said with reference to such evidence: “We do not think that this evidence was admissible, because the judgment sought to be attacked was rendered by a domestic court of general jurisdiction, in a case within the jurisdiction of the court, arid it does not affirmatively appear from the record of said cause that the court was without jurisdiction of the person of the defendant, and evidence outside the record will not be heard to contradict the presumption that the court had authority to render the judgment.” Continuing, the court quotes from a Connecticut case (Coit v. Haven, 30 Conn. 190, *620 79 Am. Dec. 244) the following as showing the reason for the rule: “It is so necessary that confidence shall be reposed in courts of high character, as well as in the records of such courts, that, on the whole, and in view of all the considerations affecting the subject, it is the only safe rule to give the decisions of courts of general jurisdiction full effect so long as they remain in force, rather than leave them open to be attacked in every way and on all occasions. Being domestic judgments, they can, if erroneous, be reversed by proceedings established directly for the purpose, or reversed on error or by new trial; and, if the danger is 'imminent and special, relief can be temporarily, if not finally, obtained by application to a court of equity. Any other rule with regard to the judgments of such courts would be attended in its application with very great embarrassment, and would be very dangerous in its operation. The general good clearly requires, and has therefore established, the rule that domestic judgments of courts of general jurisdiction cannot be attacked collaterally.” Copper v. Newell, 94 Fed. 792, 36 C. C. A. 498, was an appeal to the United States Circuit Court of Appeals from a judgment of the United States Circuit Court for the Eastern District of Texas, which included Bra-zoria county. The judgment in question was one rendered by the state district court for Brazoria county in favor of McGreal against Newell. It contained a recital that at the time it was rendered Newell was present in court by his attorneys. Said circuit court certified to the Supreme Court a question as follows: “Was the judgment of the district court of Brazoria county, Tex. (said court being a court of general jurisdiction), in the case of Peter McGreal v. Stuart Newell, subject to collateral attack in the United States Circuit Court for the Eastern Distinct of Texas, sitting in the same territory in which said district court sat, in this suit, between a citizen of the state of. New York and a citizen of the state of Texas, by evidence aliunde the record of the state court, showing that the defendant Stuart New-ell, in said suit in said state court, was not a resident of the state of Texas at the time the suit was brought, nor a citizen of said state, but a resident citizen of another state, and that he was not cited to appear in said suit, and that he did not have any knowledge of said suit, and that he did not in fact appear in said suit, and that he did not authorize J. A. Swett, the attorney who purported to appear for him in said suit, to make any such appearance, and that the appearance by said attorney was made without his knowledge or consent?” The Supreme Court answered the question in the affirmative, holding inapplicable the rule enforced where the judgment of a state court of general jurisdiction is attacked in a collateral proceeding in another court in the same state. Cooper v. Newell, 173 U. S. 555, 19 Sup. Ct. 506, 43 L. Ed. 808. The court said: “The courts of the United, States are tribunals of a different sovereignty, and exercise a distinct and independent jurisdiction from that exercised by the state courts, and this is true in respect of the courts of the several states as between each other. And the courts of the United States are bound to give to the judgments of the state courts the same faith and credit that the courts of one state are bound to give to the judgments of the courts of her sister states.” In Cooper v. Mayfield, 57 S. W. 48, decided by the Court of Civil Appeals for the First District, and whose decision was affirmed by the Supreme Court in 94 Tex. 107, 58 S. W. 827, the same judgment of the Brazoria county district court was in question, and it was held by the Court of Civil Appeals that it was not subject to attack collaterally in another state court. With reference to the decision of the United States Supreme Court in Cooper v. Newell, supra, the Court of Civil Appeals said it was— “put upon the ground that the federal court was not bound to treat the judgment of the state court as if it -were a domestic judgment drawn in question in one of the state courts, and to therefore hold that it could not be assailed collaterally, but was no more shut out from examining into jurisdiction than is a circuit court of the United States sitting in another state. * ⅜ * Hence the case of Cooper v. Newell does not apply to the question of the attack upon the record of a case in one of the courts of Texas in a suit in another of the courts of this state.” It seems to us that the cases referred to support the conclusion reached in the Martin-Burns Case, that the doctrine announced in Pennoyer v. Neff is inapplicable to a case like this one; and that there is no reason for saying that the judgment-in question here is not within the general rule applicable to judgments of a domestic court of general jurisdiction when attacked in a collateral proceeding. Therefore we think the question we have been discussing should be answered in the negative. [5] 3. A question remaining, and the one we have had most doubt about as to how it should be answered, may be stated as follows: Assuming that the domicile of the minor in this state at the time the Dallas county district court undertook to modify its said decree was indispensable to the validity of its act (Lanning v. Gregory, 100 Tex. 310, 99 S. W. 542, 10 L. R. A. [N. S.] 690, 123 Am. St. Rep. 809), was appellant entitled in this proceeding to show by evidence aliunde the record in the divorce suit that the domicile of said minor was not then in this state, but, instead, was in the state of Georgia? We have finally concluded, on the authority of cases hereinbefore mentioned and many others we have examined, that the question should be answered in the negative, because ^he judgment is within a rule which has been *621 stated in 2 Cyc. 1085 (and see Murchison v. White, 54 Tex. 78) as follows: “In a collateral attack upon a judgment or decree it will be presumed that jurisdiction attached, and the judgment is valid where the record, although failing to show jurisdiction affirmatively, yet does not distinctly show a want of jurisdiction, as where the record of a. judgment of a court of general jurisdiction is silent as to the facts conferring jurisdiction.” -We have not found anything in the record sent to this court showing what, if anything, appeared in the record of. the divorce suit and of the proceedings to modify the judgment therein about the domicile of the minor at any time. The rule, like the other one here-inbefore set out, is based on public policy (Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325), and from that standpoint there is no better reason, as we see it, why appellant in this kind of a proceeding should have been permitted to impeach the validity of the modifying judgment by evidence aliunde the record, showing that the minor was domiciled in another state, than there was why he should have been permitted to impeach it by showing that he was a nonresident of the state, and that it was rendered against him without service on him of valid process. Judgment is affirmed. Footnotes [1] dfe^For oilier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes