I dissent from the refusal to grant a hearing in this court, after decision by the district court of appeal for the third district. If the decree of divorce was void for want of the jurisdictional prerequisites to an order for publication of summons, the defect is one that is apparent on the face of the judgment-roll, and the defendant's interests can be fully protected without any order setting the judgment aside. In any proceeding involving her status as a wife, or her property rights, she may assail such judgment collaterally, and successfully object to its use against her. Since the plaintiff in the action died before the making of these motions, there was no one upon whom the defendant could serve notice of motion to set aside the judgment. The trial court may no doubt upon its own motion set aside a judgment void on its face. If it had so acted here, and we were satisfied from an inspection of the judgment-roll that the judgment was void, the order made would not have been reversed on appeal. But this is a matter within the discretion of the court below. Its refusal to set aside the void judgment should not be reviewed, for the sufficient reason that the defendant is not aggrieved *Page 13 by such refusal, her rights being, as above pointed out, already fully protected. All of this, of course, is on the assumption that the judgment is void, a question that in my view it is not necessary here to decide, and that should be left for decision in a case in which the parties interested may appear and be heard.
Of course, the alleged second wife of the original plaintiff, not being a party to this proceeding, is in no way bound by any disposition which may be made thereof. In a proper action to which she is a party, she may assert or defend her claim to the property involved absolutely regardless of such disposition. It may well be that in such an action as one to quiet title to this property, to which she and defendant are parties, it may develop that for some reason defendant is estopped to assert any claim to the property, or is barred by laches, notwithstanding that the judgment may be void on its face. No useful purpose is subserved by a reversal of the action of the trial court on these motions.
Sloss, J., and Lawlor, J., concurred.