This is an appeal to settle the principles of the case, and is from a decree overruling a demurrer to a motion or petition to vacate a decree theretofore rendered by the court below.
The petition alleges that the petitioner, the appellee here, now a resident citizen of the State of New York, was lawfully married in the year 1887, in the State of Florida, to J.I. Cratin, and there lived with him in the relation of husband and wife until May, 1894, when he deserted the petitioner and removed to Madison county, Miss., where he remained until his death in March, 1935. In July, 1900, he obtained a decree of divorce from her in the court below on a sworn bill of complaint alleging, *Page 894 after stating the grounds for divorce, "that the last time said Cratin heard of said Eva Cooper (Cratin), she was a resident of Florida, but at present he knows not her whereabouts, and has had no connection with said Eva Cooper since May 1st, 1894." An affidavit by the complainant attached to his bill of complaint alleges "that his wife is a resident of the State of Florida." Publication was made for the appellee, but no copy thereof was ever mailed to, or received by, her and she did not know of this suit for divorce, nor of the decree rendered therein, until after the death of her husband.
The petition then alleges that neither the bill of complaint nor the affidavit attached thereto complies with section 3421, Annotated Code of 1892, and therefore the publication made thereon was insufficient to justify the rendition of the decree sought by the bill of complaint.
J.I. Cratin did not marry again, and by will he devised and bequeathed his property to persons other than the petitioner, and they were made parties defendant hereto, and prosecute this appeal.
The appellants, in support of their contention that the court erred in overruling their demurrer to the petition say that:
1. The sworn bill on which the divorce was granted and the affidavit filed therewith substantially comply with the requirements of section 3421, Annotated Code of 1892.
2. If they do not, it may have been made to appear to the court rendering the decree that the publication was made pursuant to another correct affidavit therefor which has now disappeared from the record.
3. Because of the death of J.I. Cratin the case made by his bill of complaint cannot now be tried and determined. And
4. The petitioner is barred by limitations and laches.
Section 3421, Annotated Code of 1892, under which the publication for the appellee was made, provides: "If a *Page 895 defendant in any proceeding in a chancery court be shown by bill or petition sworn to or by affidavit filed, to be a non-resident of this state, or not to be found therein on diligent inquiry, and the post office of such defendant be stated in the bill, petition, or affidavit, or it be therein stated that it is not known to the complainant or petitioner . . . the clerk, upon the filing of the bill or petition, account, or other commencement of a proceeding, shall prepare and publish a summons to such party to appear and defend the suit on a rule-day or on the first day of a term of the court, sufficiently distant in time to admit of the due publication thereof."
Neither the bill of complaint on which this decree of divorce was rendered nor the affidavit attached thereto sets forth the post office address of the defendant to the bill (the appellee here), nor that her post office address was not known to the complainant. This omission is fatal, and under numerous decisions of this court the publication made thereon was ineffective. Griffith's Mississippi Chancery Practice, section 236, and authorities there cited, and Diggs v. Ingersoll (Miss.), 28 So. 825.
It is true that the court rendering the decree may have had before it another seasonably made affidavit filed with the clerk on which the publication was made, although it does not appear in the record, but that the fact is negatived by the two following allegations in the bill of complaint: "That he did not comply strictly, or otherwise, with the requirements of the statute regarding the publication of notice and process in such a case. . . . That there was no legal, valid, nor binding process had upon your petitioner in said cause."
Although the death of J.I. Cratin may result in abating his action for divorce, nevertheless the appellee has the right to have the decree complained of vacated, for the reason that her property rights are affected *Page 896 thereby. McCray v. McCray, 137 Miss. 160, 102 So. 174; 19 C.J. 169. The appellants assert that this petition is merely a bill of review and is barred by section 2322, Code of 1930, which requires such bills to be filed "within two years next after the date of the final decree in the cause." It may be, as to which we express no opinion, that the defect in the decree here under consideration may be reached by a bill of review, but such a bill is not necessary therefor. All courts have the power to set aside their judgments and decrees rendered without obtaining jurisdiction of the person of the defendants thereto, on motion or petition therefor, although the term of the court at which the judgment or decree was rendered has expired, and we have no statute limiting the time within which this may be done.
If the right of a defendant to have a judgment or decree vacated, which was rendered against him when the court was without jurisdiction of his person, is affected by laches, as to which it is not necessary for us to express an opinion, the petition negatives the existence of any facts on which laches could be predicated by alleging that the rendition of the decree was unknown to the petitioner.
Affirmed and remanded.