The decree assailed by defendant's motion was one of divorce. The main action in which the decree was rendered is not before us, except as a matter of evidence. In October, 1925, the plaintiff brought her action for divorce against the defendant, in Cherokee County. She averred the marriage of the parties in that county in 1920 and their subsequent residence therein. As ground of divorce she charged cruel and inhuman treatment. Such cruel and inhuman treatment consisted of alleged accusations made against her by her husband in letters written to her by him. She averred that such accusations charged her with immorality. Neither the letters nor the accusations were set forth by copy. In December, the defendant appeared, and filed an answer. This was, in substance, a general denial, qualified by certain admissions. He admitted he wrote "certain letters" to the plaintiff, but denied that they contained accusations of immorality. The case came on for trial on December 17, 1925, on which date the decree herein assailed was entered. This was an absolute decree of divorce, and awarded $1,500 alimony and the custody of the minor child. No reservations for future consideration were made therein.
On January 11, 1926 (said to be within the same term), the defendant filed a motion to vacate and set aside said decree. *Page 84 The material part of such motion is contained in its first six paragraphs, and is as follows:
"1. That the above entitled action, being an action for divorce brought by the plaintiff against the defendant, and issue having been issuably joined therein by the defendant, interposing and filing an answer in due time, setting up a meritorious defense to the plaintiff's petition, which said plaintiff's petition and the defendant's answer thereto, forming a part of the files and record in the above-entitled action in said court, being by this reference made a part hereof, as fully and to the same extent as though herein set out at length, the plaintiff at no time was either sworn as a witness in said cause, nor did she personally offer any testimony in said cause, at any time prior to the decree, or at any subsequent time.
"2. That no witness whatsoever was ever sworn to testify, nor did any witness whatsoever testify, in said cause, upon any issue therein at any time prior to, or at any time subsequent to, the rendition and entry of said pretended decree.
"3. That there was no corroborating testimony of any kind, character, or description offered or adduced to or before said court at any time prior to the rendition and entry of said pretended decree, in corroboration of any testimony whatsoever, as required by law.
"4. That the defendant could not, and did not, give any attorney, or any other person whomsoever, the right, power, and authority to render and enter, or to cause to be rendered and entered, the said pretended decree as a default decree or otherwise.
"5. That said court was wholly without jurisdiction and without power to render and enter said decree or pretended decree without the personal testimony of the plaintiff herself, and without her deposition, and without any sworn testimony of any other witness whomsoever.
"6. That, by reason of the fact that the said decree, or pretended decree, was rendered and entered without the personal testimony of the plaintiff, and without her deposition, and without the sworn testimony of any other witness, the said decree is void, is a nullity, is contrary to public policy, and is an attempt to sever and destroy the marital status theretofore *Page 85 existing between the parties to this action, in a manner contrary to the law and public policy of this state."
This motion came on for hearing in the district court on January 16th. At such hearing, the defendant introduced evidence tending to support the averments of fact contained in his motion. From such evidence it appears that, on December 17th, both parties appeared at court, in person and by attorneys. An agreement was reached on the subject of alimony, in advance of a hearing before the court. The case being on call, plaintiff's attorney produced certain letters claimed to contain the false accusations, and in the presence of the court submitted the same to defendant's counsel. He thereupon, in the presence of opposing counsel, stated to the court the substance of their contents. The statement was conceded by opposing counsel as substantially correct. The evidence was not made of record, nor was there any request that it should be so made. The contents of the letters are not disclosed in this record. That is to say, no proof of their contents was offered in support of this motion. The letters were before the court, but it does not appear that the judge actually read them. He expressed views as to the character of the accusations as constituting cruelty. No record was preserved of such expressions, nor do they appear in this record. That is to say, there is no record evidence of the procedure had in the main case.
I. The first question confronting the defendant is whether the district court had any jurisdiction to sustain his motion. Were the averments of his motion such, if proved, as would authorize the vacation of the decree?
The decree entered in the main case was in no sense tentative, but was in all respects final. Upon its entry, the parties thereto went "hence." There was thereafter no power in either party to call the other back, nor in the court 1. JUDGMENT: to call either party back, except in the mode vacation: provided by statute. It appears from this record insufficient that the defendant's motion was filed within the motion. term. This being so, the implication would naturally arise that the defendant intended to follow the statutory procedure for the vacation of judgment, as provided in Chapter 552, Code of 1924. But the motion in its averments does not conform to the statutory procedure. It does not in terms purport to be made in pursuance *Page 86 of the statute. Nor does the defendant's argument here on appeal predicate any right upon such statute. Indeed, such statutory procedure is not referred to in such argument.
Some of the specific averments of the motion are: That the plaintiff was not sworn, and did not testify in her own behalf. That she offered no corroborating evidence. That no witness was sworn. That no witness testified. These averments are somewhat amplified in the argument here, to the effect that there was no proof of the residence of either plaintiff or defendant, and that there was no proof of the genuineness of the signature of the defendant to the letters relied on by plaintiff. There was no averment of fraud or collusion. The argument of defendant here disclaims any intention to charge fraud. There is a statement, in defendant's affidavit in support of his motion, that the decree was obtained by collusion, but he expressly avers that he had no part in it. The motion does contain an averment that the defendant never authorized anyone to cause said decree to be rendered.
It will be noted that these averments of fact contained in the motion are strictly confined to alleged errors occurring at the trial. There is no averment therein which challenges any fact essential to a cause of action. There is no suggestion therein — much less an averment — of a valid defense to the cause of action. Though defendant contends that no proof of residence in Cherokee County was made upon the trial, yet he does not aver the nonresidence of either party. Though he contends that his signature to the letters was not proved, yet he does not deny the same. Chapter 552, Code of 1924, provides specifically the following:
"12796. The judgment shall not be vacated on motion or petition until it is adjudged there is a cause of action or defense to the action in which the judgment is rendered."
The defendant made no averment, nor did he offer any proof of a valid defense. The court below could not, upon this record, have adjudged that there was a valid defense. Yet, under the statute, such adjudication was a condition precedent to a vacation of the decree. We hold, therefore, that the defendant has failed wholly to conform to the requirements of Chapter 552, Code of 1924. He is not, therefore, entitled to any relief under such chapter. *Page 87
II. It is, of course, true that, if the decree complained of was absolutely void for want of jurisdiction in the court, then it would be subject either to direct or collateral attack, and by procedure quite independent of the statute. If, 2. DIVORCE: therefore, we should look upon the defendant's decree: motion as an attack, either direct or incompetent collateral, upon a void decree, he is under no testimony less burden of proving facts which negative the in disregard jurisdiction of the court. Errors committed by of statute. the trial court upon the trial will avail him nothing if the court had jurisdiction over the parties and the subject-matter. If there be jurisdiction, the power of the trial court to err is as unassailable as its power to render correct decision. Jurisdiction of the subject-matter of the divorce was conferred upon the district court by statute. Jurisdiction of the parties to the divorce suit was conferred upon him by their appearance, provided that one or the other of them was a resident of Cherokee County. The decree, having been entered by a court of record, is presumptive evidence of the facts essential to its jurisdiction. The jurisdiction could be negatived by a showing that neither of these parties was a resident of Cherokee County. No such contention is made, either by averment of the motion or by argument. The sole and emphatic contention of the defendant is that, because of error committed by the trial court in the hearing of the case, in accepting concessions of counsel in lieu of sworn evidence as to certain facts, the jurisdiction of the court was destroyed, and its decree reduced to a nullity. The argument claims too much. Even if it be granted that the procedure described by the defendant was one much to be deplored and disapproved, and that it presented reversible error, yet the jurisdiction of the court was not affected thereby. The responsibility still rested upon the court to hear and to determine, pursuant to proper procedure, according to his best judgment. And this is so even though his judgment erred in part, or even in whole. The errors relied on might have warranted a new trial, under the statute, but no motion for a new trial was made.
Even if we could strain the point, and thereby treat the defendant's motion as one for a new trial, it would avail him nothing on this appeal. The grounds of his motion are all laid *Page 88 3. NEW TRIAL: in the proceedings preceding the decree. They procedure: are not based upon subsequent events, such as failure to misconduct of court, counsel, or jury. The preserve record of such antecedent proceedings was, record. therefore, essential to the consideration of the grounds of the motion. For the purpose of review here, it is requisite that we have before us such record, duly certified by the court. No such record was preserved. The defendant did not, at the hearing, ask for its preservation. He thereby waived it. If the defendant had asked for such record and its proper certification, he would have had a complete and adequate remedy by appeal. Manifestly, such would have been his sole remedy. Was it any less his sole remedy because of his failure to ask the preservation? Can he cure the absence of record by mere affidavit and by the extraneous evidence of witnesses who were not such at the hearing, and by the mere ruse of a motion? Can these things function as a substitute for the certified record required by statute for the purpose of review in this court?
Furthermore, no complaint is presented in his motion which could not have been made before decree. The ground of complaint was as obvious then as thereafter. Even if he were here on appeal from the decree itself, supported by a certified record, he would be limited here to complaints urged at the proper time before the trial court, except, possibly, as to the question of jurisdiction.
The defendant's answer to all this is: This is a divorce case, and there can be no divorce granted by consent. His argument is that any concession of fact made by his counsel was in the nature of a consent to a divorce; and further, that he 4. DIVORCE: never authorized his counsel to make any decree: concession, either of fact or otherwise. It is, consent of course, true that a divorce cannot properly decree: be granted by mere consent of the parties or by insufficient collusion. But it is not true that a decree showing. entered by default is, in any legal sense, a decree by consent or by collusion. Still loss is it true that such default impairs to any degree the jurisdiction of the court. Likewise, if a defendant does appear, and does resist the proceeding, by answer or otherwise, he is under the same duty to make appropriate and timely objections as any other litigant. In this case, the defendant not only had the right to ask that a record of the *Page 89 proceedings be made at the hearing, but he had the equal right to waive it. Such waiver was not the equivalent of a consent to the decree. So far as is disclosed by the record before us, such as it is, the defense interposed was resolute until the defendant's counsel read the letters produced by plaintiff's counsel. These letters appear to have been of such character that neither the defendant nor his counsel deemed it to his interest to have them incorporated in a public record. From that point, the defense seems to have lost its vocal force. The fact that, from that point, active resistance waned, and that one or more concessions of fact were made by defendant's counsel, was not the equivalent of consent to a decree; nor did the resulting decree become thereby a consent decree. There is no claim of bad faith on the part of defendant's counsel, nor any claim that the fact conceded was not true, or was not readily provable.
What we hold is: (1) That the defendant's motion was not conformable to the statute, and could not properly have been sustained as a statutory motion; (2) that, if the motion be deemed a proper method of attack upon a decree alleged to be void for want of jurisdiction, yet the burden of showing such want of jurisdiction was not sustained, either by the averments of the motion or by the proof; (3) that, in so far as the motion serves to make complaint of errors in the procedure preceding the decree, such complaint came too late. — Affirmed.
STEVENS, FAVILLE, ALBERT, and KINDIG, JJ., concur.
De GRAFF, VERMILION, and MORLING, JJ., dissent.