Ex Parte Kay

112 So. 147, 215 Ala. 569, 1927 Ala. LEXIS 596

• Court: Supreme Court of Alabama
• Decided: March 24, 1927
• Docket: 8 Div. 936.
• Status: Published

Opinion

SOMERVILLE, J.

While it has sometimes been said that the state or the public is interested in every suit for divorce, and that courts in granting or denying divorces have regard for the public interest in a general sense (Spafford v. Spafford, 199 Ala. 300, 308, 74 So. 354, L. R. A. 1917D, 773; Fisher v. Fisher, 95 Md. 315, 52 A. 898, 93 Am. St. Rep. 334; 9 R. C. L. 409, § 208), yet, when a decree of divorce has been duly rendered by a court having jurisdiction of the subject-matter and of the parties, it differs in no respect from other decrees and judgments. It is conclusive upon the parties, and equally upon the public; and, not being void on its face, it cannot be vacated and annulled, at a subsequent term of the court, either on the motion of a party, or by the court ex mero motu. This, under decisions many times repeated, has become an elementary principle in the law of judgments. Baker v. Barclift, 76 Ala. 414; Singo v. Fritz, 165 Ala. 658, 51 So. 867.

It may, like other judgments, be impeached at any time — barring laches, of course — at the suit of the injured party, by an original bill in the nature of a bill of review, on the ground of extrinsic fraud in the procurement of the decree. Ex parte Smith, 34 Ala. 455; Johnson v. Johnson, 182 Ala. 376, 381, 62 So. 706. In the absence of such a proceeding, properly invoking this remedial and revisory jurisdiction of the court, it is without power to vacate or annul a decree of divorce, or any other final judgment, not void on its face.

It is settled in this state, and by the weight of authority generally, that:

“A decree of divorce, though procured by the collusion of the parties, is not therefore void, and neither of the guilty parties is entitled, as of right to have the decree set aside on that ground.” Johnson v. Johnson, 182 Ala. 376, 382, 62 So. 708, 708; 19 Corp. Jur. 168, § 416; 9 R. C. L. 378, § 168.

The mere fact that the parties to this decree agreed between themselves that the complaining wife should have the custody of the children, omitting that issue from the bill and the decree, has no tendency to show a fraudulent or culpable collusion in the procurement of the decree of divorce, nor would the wife’s failure to claim alimony have any such significance. But, in our view of the case, it could make no difference what facts were disclosed to the court — however significant of collusion they might have been, and however available in a proper proceeding for the avoidance of the decree. The decree of vacation wins without authority, and should itself be vacated, as clearly appears from the petition and from the answer of the respondent. In such a case mandamus is the appropriate remedy to vacate the unauthorized decree, and to restore the decree wrongfully set aside. Ingram v. Ala. Power Co., 201 Ala. 13, 75 So. 304.

Bet the writ issue as prayed.

Writ granted,

ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.