On Petition for Rehearing
Royse, J.In her petition for rehearing appellee contends we have contravened numerous ruling precedents of the Supreme Court because we asserted in our opinion that she and her attorney had perpetrated a shocking and unconscionable fraud on the trial court but did not give any reason or fact to support such statement. The short answer to that contention is that we set out nearly eleven pages of the record herein which we stated and now reiterate revealed that a “shocking fraud was perpetrated on the trial court in this case.”
She next contends we did not rule on her motion to dismiss this appeal. Our opinion clearly stated that we would not dismiss the appeal.
She then criticizes the following statement in the original opinion: “In other words, appellee in effect asserts the Nevada divorce was void as to the Morris *645divorce case in the Pulaski Circuit Court and in full force and effect in this case.” The petition for rehearing says: “Appellee and her attorney have never taken or adopted any such ludicrous position. Both believed then and still do believe and assert the'Nevada divorce was and is good.”
It is difficult for us to understand how appellee can honestly and seriously make such an assertion. We pointed out in our opinion the attorney for appellee in the trial of this case upon his oath as a resident witness for appellee stated “he knew of his own personal knowledge that both of the parties had resided in Porter County for more than five years before this action was commenced”. One of appellant’s attorneys testified to the same effect. The record shows the alleged Nevada divorce was granted about September 1, 1949. This action was commenced in September, 1952. Therefore, on the sworn testimony of appellee’s attorney on a jurisdictional question, appellee had been a resident of Porter County since at least September, 1947. Miller v. Miller (1914), 55 Ind. App. 644, 648, 104 N. E. 588. A person can have but one domicile at a time. The alleged Nevada decree is vulnerable here if the Nevada court was without jurisdiction to grant it. The above referred-to testimony of appellee’s attorney conclusively establishes that the Nevada court did not have jurisdiction to grant appellee a divorce in September, 1949. Ulrey v. Ulrey (1952), 231 Ind. 63, 106 N. E. 2d 793. Does appellee and her attorney now wish to state to this court that his testimony as to her residence in this case was untrue and that he was guilty of perjury?
Appellee then attacks the following statement:
“The court may, on its own motion, reverse the judgment where the error is very plain and such *646action is necessary to meet the ends of justice, or the error is of a nature not capable of being waived.” (Our emphasis). 5 C. J. S., pp. 1881, 1382, §1893.
She asserts there is no precedent in this state for such holding and therefore it decides a new question of law erroneously; that such holding deprives her of the right to file an answer brief on the merits in this case. The principle we invoked has been approved in numerous decisions of the Supreme Court. In the case of Big Creek Stone Co. et al. v. Seward et al. (1895), 144 Ind. 205, 209, 210, 42 N. E. 464, 43 N. E. 5, on petition for rehearing the Supreme Court, speaking through Chief Justice Hackney, said:
“Complaint is made by counsel that the sufficiency of the pleading was determined upon a question not argued by counsel for appellant, and which question was, therefore, waived.
“The correctness of the rule upon which our decision was based is not questioned by counsel, and, in our opinion, is beyond dispute. It may be inquired, therefore, should the court be controlled by a rule which would estop counsel and parties to the extent that it should hold sufficient a state of facts which plainly disclosed that no cause of action existed? Most certainly not. While we are not obliged to search for errors not made manifest by the record as the appellant brings it to us, we are not so restricted by that rule that we are required to hold a pleading sufficient when it is clearly insufficient, and when to do so would create a precedent well calculated to mislead the profession and lend confusion to well settled principles of pleading and practice. When an error is presented by the record, the case is decided upon the record and not upon the argument of counsel, but, when a question is not argued and does not occur to the court in its investigations of the record, a rehearing will not be granted to permit a discussion of such question. Martin v. Martin, 74 Ind. 207. In this case the sufficiency of the complaint was duly presented, *647and it was palpably bad. To have held it otherwise would have been a perversion of justice. If the court were limited to the arguments and reasoning of counsel in its decisions of cases, to the exclusion of its own observations, many cases would lead us far from what we understand to be the true object of the court.”
In the case of Cleveland, etc. R. Co. v. Moore (1908), 170 Ind. 328, at p. 364, 84 N. E. 540, the Supreme Court, speaking through Judge Gillett, said:
“Where resort to the record is necessary, the case will be determined by the record, and in such a case the court will not regard itself as governed by the conceptions of counsel on either side as to the nature of the controlling facts. Big Creek Stone Co. v. Seward (1896), 144 Ind. 205; Scott v. City of LaPorte (1904), 162 Ind. 34; State ex rel. v. Board etc. (1906), 167 Ind. 276. As to our observations upon the case generally, we may say, in the language of Big Creek Stone Co. v. Seward, supra, that ‘if the court were limited to the arguments and reasoning of counsel in its decision of cases, to the exclusion of its own observations, many cases would lead us far from what we understand to be the true object of the court.’ ”
See also White v. White (1935), 208 Ind. 314, 317, 194 N. E. 355, 196 N. E. 95; Marks v. State (1942), 220 Ind. 9, 25, 26, 40 N. E. 2d 108; Keeshin Motor Express Company, Inc. et al. v. Glassman (1942), 219 Ind. 538, 557, 38 N. E. 2d 847.
As stated in our original opinion, the record herein conclusively establishes that appellee attempted to marry appellant in this state while she was the legal wife of William J. Morris. Therefore, her purported marriage to appellant was, under our statute, void. Sec. 44-105, Burns’ 1952 Replacement. Hence, not having been legally married to appellant she could not be *648divorced from him. We adhere to our original decision. Petition for rehearing denied.
Crumpacker, C. J. and Kelley, J., not participating.
Note. — Reported in 118 N. E. 2d 389.
Rehearing denied 119 N. E. 2d 328.