1. An assignment of error on exceptions pendente lite or on rulings therein complained of is sufficient when the final bill of exceptions shows that exceptions pendente lite were duly filed and certified in the trial court and the contents thereof are recited in the final bill of exceptions or a copy thereof appears in the transcript of the record.
(a) The assignments of error, attacked by the motion to dismiss and strike, assign error on rulings to which exceptions pendente lite are shown by the bill of exceptions to have been duly filed and certified in the trial court, copies of these exceptions appearing in the record brought to this court, and such assignments are sufficient. Accordingly, the motion to dismiss and strike on the ground that the bill of exceptions contains no specific assignments of error on the exceptions pendente lite is without merit and is denied.
2. The "full faith and credit" clause of the Federal constitution has no application to a judgment or decree obtained in a foreign country, and comity will be applied only in a case where the laws and judicial proceedings of a foreign jurisdiction do not involve anything immoral, contrary to public policy, or violative of the conscience of this State.
(a) The evidence showing that the petitioner, a married woman, fraudulently obtained from her husband a decree of divorce in Chihuahua, Mexico, which was null and void because of lack of jurisdiction of the parties by the court rendering the same, such decree of divorce is contrary to the public policy of this State and will not be recognized as valid under its comity. *Page 362
(b) By reason of the existing undissolved marriage with her first husband, she was incompetent to contract marriage with another, and her purported marriage to the defendant after such Mexican divorce was null and void. Not being his wife, she was not entitled to a divorce, alimony, or attorney's fees, as sought in the present action, and the trial court erred in overruling the general grounds of the defendant's motion for new trial.
3. A void judgment of a foreign county, obtained by fraudulent representations as to residence, may be attacked in any court in this State, and by any person whenever material to his interest.
(a) The public policy of this State can not be circumvented by any action or agreement of individuals, and prevents recognition of a decree of divorce fraudulently obtained in a foreign county in a court without jurisdiction of the parties. Hence, the fact that the defendant here encouraged or collaborated with the petitioner in obtaining from her first husband, by fraud, a void decree in a foreign county, would not, in an action for divorce against him, estop him from attacking such decree as void and against the public policy of this State.
4. The rulings in the two preceding headnotes dispose of all other issues raised by the record as dealt with in the corresponding division of the opinion, except that no opinion is required or expressed as to the admissibility of certain evidence which was offered in support of the ground of cruel treatment, and to which complaint is made in a special ground of the defendant's motion for new trial.
Nos. 14922, 14925. SEPTEMBER 8, 1944. REHEARING DENIED OCTOBER 7, 1944. STATEMENT OF FACTS BY DUCKWORTH, JUSTICE. Mrs. Elizabeth Chase Christopher filed an action for divorce against Dene Christopher on the grounds of cruel treatment and habitual intoxication, and for temporary and permanent alimony and attorney's fees. The defendant filed an answer denying the substantial allegations of the petition; and setting up that the relationship of husband and wife did not exist between him and the petitioner for the reason that at the time of the alleged marriage the petitioner had a living undivorced husband, and therefore, as a matter of law, was incapable of contracting a valid marriage with him; and alleging further that, after the separation between him and the petitioner, he learned for the first time that the alleged divorce of the petitioner from her former husband was illegal, void, and of no effect, and therefore his said marriage with the petitioner was likewise void and of no legal effect, and in fact and in law amounted to a fraud on him. Subsequently he filed a paper denominated a plea to the jurisdiction, which as amended *Page 363 alleged that the alleged marriage relation between him and the petitioner does not exist and did not exist at the time of the institution of the present action by her; that at the time of the alleged marriage between the petitioner and himself she had a living undivorced husband, and therefore was not capable of contracting marriage with the defendant; and that the pre-existing marriage had continued undisturbed; that the petitioner represented herself as having been divorced from her previous husband at the time the defendant entered into the purported marriage with her, but that said purported divorce was and is null and void and of no effect, and was a fraud upon the defendant because of the total absence of jurisdiction of the court granting the same; that at the time of the alleged marriage between the petitioner and the defendant, to wit, on October 21, 1933, the petitioner's lawful husband, Dr. Arthur L. Whitmire, was in life and a resident of New Orleans, Louisiana; that the petitioner represented that she had divorced her previous husband, and the defendant, relying upon such representation, entered into the marriage relation with the petitioner; that the alleged divorce between the petitioner and her former husband was obtained by her in the civil court of the first instance, Bravos District, Chihuahua, Mexico, which said court did not have jurisdiction to try the case for the reason that neither of the parties was a bona fide resident of said district, State, and country, and the petitioner did not have her domicile therein, and therefore the said court could not render a valid decree of divorce between the parties; that the husband of the petitioner is, at the time of the filing of the amendment to the plea, and was, at the time of the separation between the petitioner and the defendant herein, alive and a resident of New Orleans, Louisiana; that the void divorce hereinbefore referred to amounts to a legal fraud upon the courts of the States of Louisiana and Georgia and upon the defendant herein, and this defendant was not advised by competent authority as to the status and legal effect of said void divorce until after the filing of the petition by the petitioner herein; that the defendant has not lived with the petitioner as husband and wife since being advised of the legal effect of the alleged Mexican divorce; that, as a matter of law, the petitioner is not the wife of the defendant herein for the reason that she has a living undivorced husband, and therefore can not contract a second valid marriage. *Page 364 At a hearing on April 22, 1943, before one of the judges of the superior court of Fulton County, temporary alimony was granted to the petitioner, but the question of attorney's fees was not passed on but left for decision at a later date by the judge presiding in the domestic-relations division of the court.
To the special plea of the defendant, the petitioner filed general and special demurrers. She also filed an answer and special plea of estoppel to the purported plea to the jurisdiction filed by the defendant, in which answer and special plea she denied the allegations of the defendant as to the invalidity of the Mexican divorce and also the other allegations of the defendant. She set up that the defendant proposed marriage to her at the time the divorce suit against her former husband was pending in Louisiana; that, because under the laws of that State several years would be required to obtain a divorce, and the defendant was desirous of hastening the conclusion of the divorce so that he might marry her, and, according to her present best information and belief, was desirous of furnishing himself a possible ground to void the marriage to him in the event she sued him for alimony at some future date, he not only suggested but constantly and repeatedly urged that she obtain a Mexican divorce. As a basis for such repeated requests, the defendant exhibited to her an article which, according to her best recollection, he had found in Time Magazine, and which gave an account of a new law, passed in the State of Chihuahua, Mexico, authorizing the grant of a divorce in a much shorter time than that required under the laws of Louisiana; and he assured her with great earnestness and conviction that a Mexican divorce would be legal and binding in this country, as well as in Mexico or elsewhere, and insisted to her and their mutual friends that she obtain such a divorce so that he and she could be married immediately, and stated that he was sick and in urgent need of her immediate loving care. The defendant then and there urged her to persuade her father to write to an attorney in El Paso for the purpose of securing a Mexican divorce, even going so far as to dictate to the petitioner letters to be sent to such attorney, and offering to pay the cost of the divorce. Acting solely upon his advice and overwhelming influence, she complied with his wishes, and upon obtaining her final decree she exhibited the same to him, who had not only approved but directed her every action in obtaining *Page 365 the same and knew every detail in regard thereto, and who forthwith proposed an immediate marriage. The defendant made all arrangements for their immediate marriage after said divorce was obtained, told the minister who performed the ceremony that the petitioner had obtained the Mexican divorce, and assured him that it was valid and legal, both under the laws of Mexico and of this country, and that the papers were in order in every respect. The defendant obtained the marriage license and in doing so stated that neither the petitioner nor himself had any legal impediment, and that the ground upon which the divorce was obtained was incompatibility, and he gave the date as October, 1933, and the place as Mexico. The defendant fraudulently, wilfully, and maliciously influenced and actually coerced the petitioner into obtaining the Mexican divorce for the deliberate and fraudulent ulterior purpose of placing himself in a position to escape the payment of alimony to the petitioner, in the event their marriage should become disrupted, by contending, as he is, that the marriage is void, and going so far as to admit that he is a bigamist in his efforts to escape his moral and legal responsibility to the petitioner after more than ten years of married life; his sole interest in having the Mexican divorce declared void being to escape liability for alimony. For all of these reasons, the defendant is estopped from attacking the divorce, which he himself instigated and participated in from its inception to its finality. Moreover, by the comity of nations, where the rights of mere individuals are concerned, the validity of a foreign judgment can not be attacked, especially of a nation such as Mexico, which by its own Code has adopted reciprocity as a fundamental principle; and the petitioner pleads as a legal fact that Mexico does not refuse recognition of foreign judgments, and it has been so held by the Supreme Court of the United States. The petitioner, under the express direction of the defendant, obtained the service of competent legal counsel in Mexico, and under the further direction of the defendant obtained a legal, valid, and binding decree of divorce, to the best of her information and belief, in accordance with the laws of Mexico, and the same is binding upon the defendant, under whose sole influence and pressure, which was so great as to amount to intimidation and coercion, it was obtained. Every applicable law was, to the petitioner's best information, belief, and ability, fully complied *Page 366 with, under the direction of the defendant; and she has been guilty of no legal, constructive, actual, or moral fraud on the defendant or on any court of any State or Nation; but, on the contrary, she has acted in the utmost good faith, and in so doing has made herself the willing servant of the defendant to such an extent that her acts were not her acts but the acts of the defendant. She prayed that her plea of estoppel be sustained and the defendant's plea be dismissed.
On the argument on demurrers, the defendant made an oral motion to dismiss the petitioner's plea of estoppel; and the court subsequently overruled the motion, and also all the grounds of the general and special demurrers except one special and two general grounds, which were sustained, and allowed the defendant twenty days within which to amend to meet the objections urged. In the same order, the court allowed $350 attorney's fees to the petitioner's attorney, on account, and increased the temporary-alimony installments which the defendant had previously been ordered to pay the petitioner, the increased amount being ordered pursuant to a petition filed by her. To the order allowing counsel fees and the modification of the previous order awarding temporary alimony, the defendant filed exceptions pendente lite. To the order overruling the general and special grounds of demurrer, the petitioner filed exceptions pendente lite. Within twenty days from the order requiring the defendant to amend his special plea, he filed an amendment, alleging that the authority referred to as being his attorney, who advised him that the petitioner's Mexican divorce was illegal, was Philip Etheridge; and alleging that the alleged divorce is void and of no legal effect because, by article 22 of the Mexican divorce statutes of the State of Chihuahua, Country of Mexico, jurisdiction to hear a suit for divorce lies in the court of the petitioner's residence; that therefore the petitioner herein could not and did not obtain a valid divorce from her husband, Dr. Arthur L. Whitmire, because she in fact had no residence in said district; that her testimony in said court of the first instance, Bravos District, Chihuahua, Mexico, to the effect that she was a resident of the City of Juarez and State of Chihuahua was false and amounted to a fraud upon said court and an attempt on her part to void and evade the laws of the domicile of her husband, Dr. Whitmire, and herself and the domicile of the marriage between *Page 367 them; that the courts of the State of Georgia do not recognize void judgments, and by the laws of Georgia a void judgment may be attacked at any time in any proceeding when the same becomes material; that there is no practice by comity or any constitutional requirement which would, or as a matter of law could, be interpreted to require the courts of this State to give force or credit to the void judgments of any State or nation; that the State of Georgia has an interest in and is concerned with the marital status of its citizens, which interest and concern are greater than the interest and concern of either party to such marriage, and which can not be altered or disturbed by any act or estoppel of the parties to such marriage; that the public policy of the State of Georgia is opposed to the setting aside of the laws of this State by the acts of individuals contrary to law; and that the parties hereto can not and could not by their own acts and conduct invalidate or set aside the laws governing marriage and divorce as established by the State of Georgia. Thereupon, the petitioner filed renewed general and special demurrers and a motion to dismiss the defendant's special plea as amended. Subsequently, the court overruled the renewed demurrers and the motion to dismiss, and the petitioner excepted pendente lite.
Subsequently, the petitioner amended her plea of estoppel by alleging that, at the time the defendant was urging her to obtain a Mexican divorce, he was traveling several States and in poor health and needed her to travel with him and act as his secretary and otherwise care for him, according to his own statements to her and others; and that, for these reasons, he was extremely desirous of hastening the conclusion of a divorce in her behalf so that he might marry her and thus gain her aforementioned services, and accordingly he urged her to obtain the said quick Mexican divorce.
On the trial, the defendant, through his counsel, insisted that his special "plea to the jurisdiction" should be first disposed of, but the court ruled that it was not a plea to the jurisdiction, but merely a pleading of a defense to the petitioner's action, and overruled the motion of the defendant to try the said plea first, and directed that the issue thus made be tried simultaneously with the issues raised by the petitioner's action. Accordingly, after the introduction of evidence, the court charged the jury in substance that, if the petitioner had made out her case and they believed also *Page 368 that the defendant was estopped from raising the question of the invalidity of the Mexican divorce, they should find for the petitioner the usual verdict of divorce; but that, if the petitioner had not made out her case, they should find for the defendant even if they found that the defendant was estopped; and that, if they found that the petitioner had made out a case entitling her to a divorce on the grounds pleaded but that the defendant was not estopped from raising the question of the invalidity of the Mexican divorce, then the form of their verdict would be, "We, the jury, find for the defendant on the ground that he is not estopped from raising the question as to the validity of the Mexican divorce."
In the view of the case entertained by this court, it is deemed unnecessary to set forth the evidence introduced with respect to the grounds relied upon by the petitioner for a divorce. The evidence on the question of the invalidity of the Mexican divorce, and the conduct of the defendant herein which the petitioner asserts estops him from assailing it, may be summarized as follows: The petitioner met the defendant in New Orleans, Louisiana, in January, 1932. He had been married, but was divorced. The petitioner had married, but at that time had a divorce suit pending in a New Orleans court. She testified that she was then thirty years of age, and had been awarded the custody of her two children by her first marriage with a Dr. Whitmire, one child being three years of age and the other eight. The defendant was fully informed of these facts soon after he met the petitioner, and with such knowledge proposed marriage to her, to take place as soon as her divorce action could be successfully terminated. Dr. Whitmire was supporting the children through an order of the juvenile court of New Orleans, and was still doing so at the time of the trial of the present case. The defendant had just recovered from a nervous breakdown, was in poor health, traveled several states by automobile, and was in need of a secretary to carry on his correspondence. Because of his condition of health, he was in need of someone to travel with him; and the petitioner being a secretary, he explained to her that the sooner they got married the better it would be for him from the standpoint of his health as well as his business. She was very much in love with him and trusted him implicitly — a ladies' man, super salesman, tall, suave, and handsome. Her father objected strenuously to the marriage. *Page 369 It took several years to get a divorce under the laws of Louisiana. The defendant was very anxious to marry her and often complained of the length of time required for her to obtain the divorce from her former husband. He needed her to nurse him and be his secretary on his travels and felt that if she were with him he would get well. She thought that he was genuinely in love with her and that she was a great comfort to him. The defendant discussed with her from time to time various other means and places of obtaining a quicker divorce, and finally he gave her an article which he had cut from Time Magazine on the subject of a new Mexican divorce law, providing that in Mexico a divorce could be obtained on the ground of incompatibility merely by the parties signing a paper to that effect, and consenting to the jurisdiction of the court. The defendant assured her that such a divorce would be legal and could be obtained quickly and even offered to pay for it. He said just to go ahead and get the Mexican divorce, and to wait was silly when there was a possibility of getting the divorce much faster. He assured her that the Mexican divorce, if granted, would be legal in this country or Mexico or anywhere, and she made the same argument to her father. The defendant told her that Paris and other foreign divorces were being upheld; that there was no reason why the Mexican divorce should not be upheld; that we were trying to be friendly with Mexico, and he felt or thought that this ground would form a better basis of friendship and relationship. The petitioner was thus influenced in obtaining the Mexican divorce. He convinced her that it was the proper thing to do. In an effort to convince her father of the legality of the contemplated Mexican divorce, she consulted the attorney who was representing her in the divorce action in New Orleans, and he advised against it. She told the defendant what her lawyer had said, and he replied that "It looks like the lawyer doesn't want to give up your case with him, the one he was getting." She consulted another lawyer in an effort to convince her father, and this lawyer stated as his understanding that it would be all right to get a Mexican divorce when the law went into effect, and that it would hold up in the United States. She and Dr. Whitmire signed the necessary papers on the ground of incompatibility after this advice was given, and her father consented to her getting the Mexican divorce. The defendant suggested the procedure which she should take; saying *Page 370 that he thought the proper thing to do would be to write to a bank in El Paso, and that it probably had the names of lawyers, being right on the border, and Juarez being right across from El Paso. She wrote to the bank and received the names of some attorneys and so informed the defendant, and he said the next thing for her to do was to ascertain how much would have to be paid and he offered to pay for the divorce. After some correspondence, she finally decided on a Mr. Munoz as an attorney, and in her correspondence with him the defendant told or dictated to her what she should say. She showed him the correspondence and he advised her, and she finally obtained a Mexican divorce. She never would have gotten it if the defendant had not mentioned it to her. When she and the defendant went to a Presbyterian minister in Decatur, Georgia, to be married, the minister looked at the paper and said: "What is this, a Mexican divorce? Is it all in order?" The defendant answered, "Yes, it is all perfectly in order." The "paper" referred to by the petitioner, which was introduced in evidence, was a certified copy of an application for a marriage license, in which the defendant swore that he was 38 years of age, that the petitioner's age was 30, that they both had been previously married, and that both had been divorced upon the ground of "incompatibility," he having been divorced in August, 1932, at Jackson, Tennessee, and she in October, 1933, in Mexico, and that neither had any legal impediment. She further testified that she did not know whether or not, in the case instituted by her against Dr. Whitmire in New Orleans, she was even divorced before her marriage to the defendant.
Mrs. Frederick H. Fox testified that she knew the petitioner and the defendant in New Orleans before their marriage, and that each of them said that he or she was going to marry the other; that the witness knew that at the time the petitioner was suing her former husband, Dr. Arthur Lee Whitmire, for a divorce, and the pending suit was discussed in the presence of the witness by the petitioner and the defendant; that the defendant complained in the witness's presence about the delay which the attorney for the petitioner was causing in his proposed marriage to the petitioner, and was most impatient, complaining of the procrastination of Dr. Whitmire, and making those complaints many, many times; that the defendant, in her presence, suggested to the petitioner a Mexican *Page 371 divorce, and said in substance that Mexican divorces were considered legal in many states, and he expressed a desire that a divorce be obtained, saying "I am anxious for you to get it," making that statement many times to the petitioner and the witness, and saying that, if the petitioner and Dr. Whitmire would both sign the papers, this would be all that was necessary to make the Mexican divorce legal in both Mexico and the United States, and that the divorce would go through without delay. The petitioner, in the presence of the witness, made the statement to the defendant that, in view of his positive assurances as to a Mexican divorce being legal in all respects, both in Mexico and anywhere in this country, she would apply for such a divorce.
The defendant testified that the article in Time Magazine was just a news item. He thought that the Mexican divorce would be legal, but did not consult any lawyer before the present suit was instituted. He told the petitioner to take the clipping to an attorney and find out what he said. She did this, and then told the defendant that the lawyer said such a divorce was not good. As to telling her what to do then, he did not remember. After she had told him and he had been advised by another lawyer, who had collaborated with lawyers in Mexico in formulating the Mexican divorce law, he told her to write to a bank in El Paso and they would probably have the names of lawyers practicing in the "international" court. In personal conversations and over the telephone, she would ask his opinion as to what she should do in connection with letters received by her regarding the contemplated divorce; and he would tell her what he thought the answer were and give her his best advice, but he did not write or frame any letters for her to write. He told her to get competent legal advice as to the legality of a Mexican divorce. He accepted the legal advice which she got. He probably discussed the situation in the presence of mutual friends. The object was to obtain a divorce more quickly than the one pending in New Orleans so that they could get married earlier than otherwise. It would take a year longer, if his memory was correct, to obtain the divorce in New Orleans, and he did not want to wait that long. He told the Presbyterian minister who married him and the petitioner that he thought the papers were in order, saying, "We have just been through them and they are in order." He did nothing about looking *Page 372 into the legality of the Mexican divorce before he married the petitioner, but married her in good faith, and did not investigate the legality of the divorce until she told him she wanted a divorce from him. It is not true that he brought up the question of the illegality of the Mexican divorce because he wanted to escape the payment of alimony. He made the defense on the advice of his counsel. He was suspicious as to the validity of the Mexican divorce before he married the petitioner, and that is why he told her to consult a lawyer, but his doubts were allayed when she found the lawyer who advised that it would be legal. He did not again become suspicious until years afterwards, when the question arose in several states as to the validity of such a Mexican divorce; but this did not make any difference, since he had married her in good faith, and the marriage would have continued if she had not started the present action. He discussed Reno divorces with her and offered to pay for the Mexican divorce.
The petitioner having assumed the burden of proving the validity of the Mexican divorce, as well as the burden of showing estoppel of the defendant to question it, testified as to the procedure she went through under the alleged direction and control of the defendant. She admitted that she did not go to Mexico and establish a residence, thinking it unnecessary if she and Dr. Whitmire signed papers which under the law of the State of Chihuahua, Mexico, would confer jurisdiction. She introduced without objection a translated copy of the Mexican divorce laws, among which are the following provisions: "Art. 2. The divorce may be granted by mutual consent or by contention. The first proceeds from the request of both married [parties?]. . . Art. 22. The judge presiding over the place of residence of the party bringing the divorce suit shall try a contested divorce suit, and in the case of a mutual-consent divorce the judge presiding over the place of residence of either party may act. Art. 23. The competence of the court may also be fixed by expressed or tacit agreements. There is an express submission when the interested parties clearly and positively waive the privilege granted them by law and designate precisely the judge who will try the case. There is tacit submission by the action of the plaintiff in presenting his suit or by the defendant once he is legally summoned, not contesting opportunely the competence of the court, or if after contesting by waiving such contest. Art. 24. *Page 373 For the effect of Art. No. 22, place of residence will be proved by the respective registry records of the municipality. Art. 25. Divorce by mutual consent can be secured only after one year from date of marriage. A contested divorce may be sought at any time. . . Effective date of the law. Art. 1. This law will become in force the first day of August of this year [Approved July 15, 1933]." The petitioner testified that both she and Dr. Whitmire joined in signing the express submission as provided for in article 23, and that this was done with the knowledge of and under the express direction of the defendant herein. She also introduced in evidence without objection an authenticated copy of her entire Mexican divorce proceeding in the civil court, Bravos District, Juarez, Chihuahua, Republic of Mexico, from which the following appears. The divorce action was filed by the petitioner against Arthur Lee Whitmire on the ground of incompatibility of character under article 3, section 19, of the law of divorce, addressed to the civil judge of the Court of first instance, reciting that "Elizabeth Chase Whitmire is of lawful age, address No. 418 Lardo Avenue, in this city, and authorizing Mr. Frederico Munoz, attorney, to receive notifications in her name;" reciting that she bases her suit upon facts as shown by her accompanying marriage certificate, that she and Arthur L. Whitmire were married in New Orleans, Louisiana, U.S. A., on the 5th day of September, 1922, that birth records of her two daughters are attached, naming the children and reciting that they reside in the United States of America, and that the characters of the parties to the action "are so incompatible that it makes their further living together impossible." The provisions of the Mexican law relied on by the petitioner are set out. She prayed for the admission of her petition for divorce against Arthur Lee Whitmire, and for an order for citation for service on him at his domicile through the sheriff of the place of his residence. This record also recites a certificate of residence in Ciudad, Juarez, Bravos District C, Chihuahua, on August 23, 1933; that at the 16th hour there appeared in the office of the municipal presidency Mrs. Elizabeth C. Whitmire, married, of lawful age, with actual domicile at No. 305 Juarez Avenue, and she stated that she appeared therein to prove her actual residence, this city, appearing in the office of the municipal president (mayor's office), and that such residence be placed in the municipal census, and that a document showing such residence be issued to *Page 374 her for all legal effects. The record also shows a written answer of Dr. Arthur Lee Whitmire, in which it is recited that he is an American citizen of lawful age, a transient in the city, and in his own right personally appears and says that he has knowledge of the suit, that the alleged grounds for divorce are true, and praying that his appearance be entered agreeing to the suit and admitting the allegations of the petition, and that judgment dissolving the marriage relation be granted. The record also shows a judgment granting the divorce as prayed. The petitioner testified that the address of Juarez was incorrect, and introduced a deposition of her counsel in the divorce proceeding in Mexico, in which he explained that it was given solely that any communications intended for her would be received by him at the street address which was really that of himself. He also testified that under the law of Mexico the submission of the case to the designated judge was sufficient to give the court jurisdiction, and the question of the actual residence of the petitioner was not material to jurisdiction unless specifically contested; and that in his opinion, and from his own knowledge of the laws of the State of Chihuahua, Mexico, the divorce granted the petitioner was a legal and valid one.
The jury returned a verdict of total divorce in favor of the petitioner. The defendant made a motion for new trial on the general grounds, and by amendment added several special grounds, in substance as follows: 1. A complaint that the court erred in admitting certain evidence in support of the ground of cruel treatment. 2. A complaint that the court erred in a certain portion of its charge hereinafter referred to. 3. A complaint that the court erred in directing that the issue made by the special plea attacking the validity of the Mexican divorce and the competency of the petitioner to contract a valid marriage with the defendant should be tried simultaneously with other issues. The court overruled the motion for new trial. Error is assigned in the bill of exceptions: (1) on the judgment overruling the motion for new trial; (2) on the judgment overruling the defendant's motion to dismiss the petitioner's plea of estoppel and the order awarding $350 attorney's fees; (3) on the judgment overruling the defendant's motion to have tried first the issue raised by his plea, which was denominated a plea to the jurisdiction.
The petitioner filed a cross-bill of exceptions, in which she assigns error: (1) on the judgment overruling her general demurrer *Page 375 to the defendant's special plea as amended; (2) on the judgment overruling the petitioner's special demurrers to the defendant's special plea as amended; (3) on the judgment overruling the petitioner's renewed general demurrer to the defendant's special plea as amended; (4) on the judgment overruling the petitioner's renewed special demurrers to the defendant's special plea as amended; (5) on the judgment overruling the petitioner's motion to dismiss the defendant's special plea as amended.
In this court, the defendant in error filed a written motion to dismiss and strike from the bill of exceptions of the plaintiff in error, as containing no specific assignment of error on his exceptions pendente lite filed and duly certified, an assignment of error on the judgment of the trial court overruling his motion to dismiss the petitioner's plea of estoppel, and also awarding $350 attorney's fees; it being recited in the assignment of error, "to which order, judgment, and decree the defendant then and there excepted, and now excepts, and assigns error thereon as being contrary to law, said exceptions being made pendente lite during the same term at which said order was granted, by order of the court entered on November 26, 1943." On the same ground the plaintiff in error moved to dismiss and strike from the bill of exceptions an assignment of error on the judgment of the trial court overruling the defendant's motion to submit to the jury as a special issue the special plea filed by him and denominated a "plea to the jurisdiction," in which plea he attacked the validity of the Mexican divorce obtained by the petitioner before her purported marriage to him; the court directing that such issue be tried together with other issues in the case, with the right of the petitioner to the opening and concluding arguments to the jury; and it being recited in the assignment of error, "to which ruling and judgment the defendant then and there excepted, and now excepts, and assigns error, contending that the same was erroneous and contrary to law, and that the court should have granted said motion and should not have denied him the right to first try the issue made by said special plea and obtain the opening and concluding argument, and this ruling and judgment was preserved by exceptions pendente lite duly filed and allowed on March 23, 1944." 1. The assignments of error which the defendant in error moves this court to dismiss and strike from the bill of exceptions plainly set forth the rulings complained of, and show that exceptions pendente lite thereto were duly filed and certified. These exceptions pendente lite were brought up to this court in the record and complain of rulings on which error is assigned in the final bill of exceptions, and are duly certified by the trial court. In Alexander v. Chipstead,152 Ga. 851 (111 S.E. 552), it was ruled that, "when the final bill of exceptions shows that exceptions pendente lite were properly filed in the trial court, and when the contents of such exceptions pendente lite are recited in the bill of exceptions, or a copy thereof appears in the transcript of the record, an assignment of error in the final bill of exceptions, either upon the exceptions pendente lite or upon the rulings therein excepted to, is sufficient." The assignments of error here attacked are sufficient under the above authority, and the motion to dismiss is denied.
2. The petitioner, at the time she met the defendant, was admittedly a married woman with an action for divorce pending in a court in New Orleans, Louisiana. It appears that before the conclusion of that litigation she obtained, in the State of Chihuahua, Mexico, a divorce from her former husband. The present defendant, having filed what he denominated a plea to the jurisdiction, but which the trial court correctly construed as mere allegations setting up a defense to her action, attacked the validity of that divorce on the ground that the court was without jurisdiction, since the petitioner established no actual residence in Mexico; and he contended that the divorce was a fraud upon the court and upon himself and society as well and should be treated by the courts of this State as null and void and of no legal effect. The petitioner undertook to show that the divorce was a valid one, and that she was, therefore, competent to contract a valid marriage with the defendant. While she also introduced evidence to support the grounds of divorce alleged against the defendant, we have not set out that evidence, since in our opinion the case turns on the question whether the Mexican divorce was one which should be recognized as valid in this State. The "full faith and credit" clause of the Federal constitution has no application here, since that provision has reference only to the recognition, where a divorce *Page 377 is involved, of such as are obtained within the courts of the United States. Comity alone could authorize recognition of the Mexican divorce. "The general rule governing the comity of nations is that in a proper case the laws and judicial proceedings of one State will be enforced in another State, provided they do not involve anything immoral, contrary to public policy, or violative of the conscience of the State called upon to give them effect." Joyner v. Joyner, 131 Ga. 217, 220 (62 S.E. 182, 18 L.R.A. [N. S.] 647, 127 Am. St. R. 220). It is fundamental that comity will not be applied where a divorce is obtained in a foreign State under circumstances which offend the public policy of this State as found in its constitution and statutes and the decisions of its courts.
A marriage relationship, when once established, can not be dissolved in this State except upon one of the eight absolute grounds specified in the Code, § 30-102, and the discretionary grounds of cruel treatment and habitual intoxication mentioned in section 30-104. A specification of persons able to contract marriage is given in section 53-102. They must be of sound mind and, if a male, at least seventeen years of age and, if a female, at least fourteen years of age, and laboring under none of the following disabilities: 1. Previous marriage undissolved. 2. Nearness of relationship by blood or marriage as explained in the Code, § 53-105. 3. Impotency (at time of marriage). Marriages of persons unable to contract marriage are void, but, until such marriages are declared void by a competent court, the children of such marriages shall be legitimate. Section 53-104. It was expressly ruled in Irving v. Irving, 152 Ga. 174 (108 S.E. 540, 18 A.L.R. 88), that the provisions of section 53-104, relating to the legitimacy of children, do not refer to a marriage where at the time either of the parties had a previous marriage undissolved; and that in such cases the later marriage is void and a nullity, and may be so treated by the parties; and that a decree of court declaring it void was unnecessary. See also Brown v. Parks, 169 Ga. 712 (151 S.E. 340, 71 A.L.R. 271); Pickren v. Pickren, 190 Ga. 609 (10 S.E.2d 40); and Barnett v. Barnett, 191 Ga. 501 (13 S.E.2d 19), holding absolutely void a marriage entered into between parties where the plaintiff had a living spouse from whom no divorce had been obtained. Therefore it must be accepted as a matter of *Page 378 law that, in the absence of a dissolution of her previous marriage by a valid divorce, the petitioner in the present case was unable to contract a legal marriage with the defendant. If not his wife, then she is not entitled to alimony and attorney's fees. Morgan v. Morgan, 148 Ga. 625 (97 S.E. 675, 4 A.L.R. 925); Foster v. Foster, 178 Ga. 791 (2) (174 S.E. 532);Collins v. Collins, 165 Ga. 198 (140 S.E. 501). Hence, the validity of the Mexican divorce obtained by the petitioner is open to consideration, and, if void, it follows that she was not able to contract a valid and legal marriage with the defendant under the laws of this State. The Mexican law, a translated copy of which was introduced in evidence, does not purport to provide for a divorce by mutual consent independently of an actual domicile. Article 23 provides that the competence of the court may be fixed by an express or tacit agreement, and that an express submission arises when the interested parties clearly and positively waive the privilege granted them by law and designate precisely the judge who will try the case. Assuming, but not deciding, that the "competence" mentioned does not refer merely to the judge trying the case but to the tribunal in which he presides, and that the "express submission" is to such tribunal, and not merely an agreement that a designated judge shall act in a court having jurisdiction, and that as contended by the petitioner a compliance with these provisions established jurisdiction under the Mexican law, such a method of acquiring jurisdiction offends the clear postulate of this State that jurisdiction in a divorce case can not be conferred. But the Mexican law itself does not stop here. It contemplates an actual residence, as shown by the provision of article 22 that in the case of a mutual-consent divorce the judge trying the cause is one "presiding over the place of residence of either party;" and by article 24 it is provided that, "For the effects of art. 22, the place of residence will be proved by the respective registry records of the municipality" in which the party resides. A copy of the entire divorce proceedings, introduced in evidence, disclosed that the petitioner made a mock effort to comply with the requirements of residence, falsely filing in the prescribed registry a declaration of residence in Ciudad, Juarez, Bravos District C, Chihuahua, Mexico; and that afterwards a certificate of residence, dated August 23, 1933, was issued and filed in court as proof of residence, which *Page 379 she alleged in her petition filed on October 11, 1933, and pursuant to which a decree of divorce was granted on the same date and a certificate issued on October 14, 1933. The record also shows a written answer filed by her former husband, Arthur Lee Whitmire, reciting his residence elsewhere, that he was then a transient in Mexico, admitting all the allegations of the petition, and praying that a divorce be granted. Notwithstanding the false representations of residence recited in the decree, the petitioner admitted on the trial of the present case that she never went to Mexico. Thus the decree was essentially a "mail-order" divorce, obtained by fraud and collusion, and rendered by a court without jurisdiction of the parties and was void. Cochran v. Cochran, 178 Ga. 856 (162 S.E. 99);Adams v. Adams, 191 Ga. 537 (13 S.E.2d 173); Barnett v. Barnett, 191 Ga. 501 (supra). Being thus a void foreign judgment of the State of Chihuahua, Mexico, it was subject to collateral attack. Milner v. Gatlin, 139 Ga. 109 (2 a) (76 S.E. 860); Portman v. Mobley, 158 Ga. 269, 273 (123 S.E. 695); Green v. Whatley, 158 Ga. 628, 633 (123 S.E. 871);Durden v. Durden, 184 Ga. 421 (191 S.E. 455). No principle of comity can be invoked to give extra-territorial effect to a judgment procured by fraudulent representations in order to obtain jurisdiction of the court. Matthews v. Matthews,139 Ga. 123, 125 (76 S.E. 855). The petitioner, being an undivorced married woman at the time of her purported marriage to the defendant, was not legally competent to contract a valid marriage with him, and such marriage was void. Not being his wife, she was not entitled to maintain the present action for divorce, alimony, and attorney's fees. It follows that the trial court erred in overruling the defendant's motion for new trial.
3. But it is contended that, even though the Mexican divorce was invalid, the defendant is estopped by his conduct from assailing it and hence, for the purpose of adjudicating the issue here, it must be treated as valid. Under the evidence, the jury would have been authorized to find that the defendant encouraged or collaborated with the petitioner in obtaining the Mexican divorce, and that he seeks to treat it as invalid only after ten years of consorting with her and when confronted with a claim for alimony. As between individuals, where no question of the general welfare of society or public policy is involved, the principle of estoppel *Page 380 runs throughout the law. "Although an act be unconstitutional and void, it will operate as an estoppel upon the party applying for it, and procuring its passage and accepting its benefits." 2 Herman, Commentaries on the Law of Estoppel and Res Judicata, p. 1198, § 1068, citing, among other cases, Robinson v. Bank ofDarien, 18 Ga. 65. But the consideration that would ordinarily be shown to one wronged by the party against whom estoppel is sought must yield to the public interest in so important a matter as the marital status of the citizens of this State. "By constitutional provisions, statutory enactments, and judicial pronouncement, a public policy has been declared and enforced, looking to the use of the closest scrutiny in all cases that affect the severance of the matrimonial relation." Jones v.Jones, 181 Ga. 747 (2) (184 S.E. 271). That this public policy can not be circumvented by the action of individuals, is made manifest by the provision of our Code, § 102-106, which declares that "Laws made for the preservation of public order or good morals cannot be done away with or abrogated by any agreement." Pennaman v. Pennaman, 153 Ga. 647 (112 S.E. 829), while not identical on its facts, is controlling in principle here. There, the wife, in a state of separation from the defendant, brought an action for alimony and attorney's fees. He defended on the ground that she was not entitled to alimony because at the time of their purported marriage she had a living husband from whom she had not been divorced. She insisted that he was estopped from questioning the validity of her marriage to him because he had married her while knowing all the facts which he alleged. The record, which we have examined, shows that each of the parties had a living spouse from whom no divorce had been obtained, and that each party knew the other's marital status. Nevertheless, the defendant married the petitioner and lived with her as her husband for more than twenty-five years. The trial judge passed an order reciting that since the evidence showed that the parties were not lawfully married, the doctrine of estoppel could not be applied to the defendant as against his defense, and that no discretion had been exercised by the court. This court affirmed that judgment. Accordingly, it must be held that the defendant here did not, by entering into a bigamous marriage after encouraging or collaborating with the petitioner in obtaining the Mexican divorce, estop himself from *Page 381 insisting upon a judgment in this State upholding its public policy and refusing to sanction the illegal relationship which he maintained with the petitioner, who is shown to have obtained in another country an invalid divorce by fraud and collusion.
Dillon v. Dillon, 60 Ga. 204, cited and relied on by the defendant in error, is distinguishable on its facts. There, the defense was, not that a former marriage existed which would make the second marriage bigamous, but that the petitioner was not able to contract a valid marriage with the defendant, a white man, because she had more than one-eighth African blood in her veins, and therefore was not a white person. This contention was foreclosed against him by the fact that the legislature had, at his instance, in December, 1857, after a hearing as to her status, declared her to be a person "entitled to all and singular the rights and privileges of the citizens of Georgia." Since the record in this court shows that the doubt resolved by the legislature, affecting the question of her citizenship, was specifically whether or not she was a white person, though not recited in the act itself, the pronouncement by the legislature necessarily established as a matter of law the fact, not open to question in a case of that kind, that she was a white person in December, 1857, and, consequently, she was in nature and in fact such a person from the date of her birth. Hence the defense that she was incompetent to contract a valid marriage with the defendant, on the asserted ground that she was a person with more than one-eighth African blood in her veins, necessarily falls, since a contention of fact which is overborne by a valid legislative act must be disregarded. Griffin v. Augusta Knoxville Railroad, 72 Ga. 423 (2 d); Harvey v. Savannah,59 Ga. App. 12 (199 S.E. 653). The court broadly ruled that the defendant, having married the petitioner and lived with her for many years openly as husband and wife, rearing a family of children by her, was for such reason alone estopped from denying her competency to contract the marriage with him; but the court said that, while there was room for a difference of opinion in that respect, there could scarcely be a doubt as to the defendant being estopped by his act in procuring the passage of the law declaring the petitioner's status as a citizen at a time when only white persons were members of our body politic. It will be noted that the ruling as to the defendant being estopped, independently of his procurement *Page 382 of the legislative act, was made in a case where the alleged incompetency was only by reason of the alleged fact that the petitioner was not a white person; and it is not to be inferred that such a ruling would have been made if the marriage to the defendant had been bigamous, as in the present case, and hence an affront to society and against public policy. This paramount consideration of public policy was not overlooked by the court but applied in the opinion, and it was observed that, for reasons stated, public policy (a bigamous marriage not being involved) would be conserved rather than militated against under the facts presented. The court also said that it was not an open, bald case of the intermarriage of an African with a Caucasian. As pointed out in the Pennaman case, supra, which controls here and in which a bigamous marriage was involved, the Dillon decision is distinguishable therefrom.
4. The rulings made in the second and third divisions of the opinion necessarily conclude, in favor of the plaintiff in error, the following questions presented by him: 1. That the court erred in overruling his motion to dismiss the petitioner's plea of estoppel and in awarding $350 attorney's fees. 2. That the court erred in a portion of its charge (not set out in detail in the statement of facts) in submitting to the jury, in connection with its charge as to the conditions under which the petitioner would be entitled to a verdict of divorce, the question whether or not the defendant was estopped to deny the validity of the Mexican divorce, and the competence of the petitioner to contract a valid marriage with him. The rulings control, adversely to the plaintiff in error, his contentions: 1. That the court erred in overruling his motion to have tried, first and apart from the question whether or not the petitioner was entitled to a verdict of divorce on grounds alleged, the special plea, which he denominated a plea to the jurisdiction but which the court correctly held to be merely defensive in nature. 2. The contention that because the special plea was, as the defendant alleged, a plea to the jurisdiction, the issue made by it should not have been tried simultaneously with the question of the right of the petitioner to a verdict of divorce on grounds alleged. The direction by the court that the issues be tried together was not error for the reason assigned. No opinion is expressed as to the admissibility of certain evidence which was offered in support of the petitioner's alleged ground of cruel treatment, and *Page 383 to which complain is made in a special ground of the motion for new trial.
The rulings control, adversely to the defendant in error, the question raised by her cross-bill of exceptions as to whether or not the court erred in overruling her general and special demurrers to the defendant's special plea as amended, in which amended plea he attacked the Mexican divorce and the competency of the petitioner to contract a valid marriage with him. Assuming but not deciding that some or all of the grounds of demurrer would have been meritorious in a case where public policy was not involved, the defendant's plea as amended was sufficient to withstand the objections urged in the present case, and it has not been deemed necessary to set them. out in detail in the statement of facts. The assignment of error on the judgment overruling the petitioner's motion to dismiss the defendant's special plea is also controlled adversely to her by the rulings made in the second and third divisions of the opinion.
Judgment reversed on main bill of exceptions, and affirmed oncross-bill. All the Justices concur.