I dissent, and in doing so respectfully suggest that the majority of the Court has inventoried the facts in this case in a light most favorable to the unsuccessful party, contrary to our established rule. The appellant sued Fossell for divorce, pleading and testifying under oath that he was then alive. In that case the Clerk mailed a copy of summons and complaint to Fossell at an address furnished by appellant and “there was no record of the name having been unclaimed, not delivered, or returned”. A decree of divorce was entered based on the facts and records initiated by appellant herself. In an amendment filed 2 days before the trial of the present case, she collaterally attacked that decree and offered to prove it was her belief based on a hearsay statement of a friend, that Fossell was dead. This court, and the authorities generally, prohibit such a collateral attack.1 Even if permitted, such attack could not be supported by inadmissible opinion and hearsay evidence. The decree and the finding therein that he was alive should remain inviolate and binding until successfully attacked in a proper proceeding, by strong evidence calling for equitable relief, — and the burden rests with him who levels such attack.
The majority opinion overlooks these principles by failing to discuss them, and renders lifeless the previous divorce decree. The respondent introduced into evidence the previous decree of divorce, based upon findings of fact showing Fossell to be alive. The files and records of the previous case, which were before the court in this case, *244showed that process was mailed to Fossell and that the same was not returned, raising a presumption that he received it, and justifying the logical conclusion that he was alive. It would be difficult for respondent to present anything more, never having known or seen Fossell, an admitted non-resident, and a quarter century having elapsed since Fossell’s status as a human being became important. Certainly the showing made here ate deeply into, if it did not actually devour, the presumption indulged in by this court, that the second marriage was valid. The trial court, in determining the issues in respondent’s favor, must have considered such presumption to have been rebutted successfully. Irrespective of such conclusion, if we are going to indulge in presumption to determine the rights of litigants, the presumption that decrees of courts are binding until successfully destroyed in a proper proceeding, historically and fundamentally is as strong or stronger, and requires as great or greater proof to overcome than a presumption of validity of a second marriage. It is difficult therefore to discern how the majority opinion can defend the idea that appelant has no burden of proving that Fossell was dead, when he was found to be alive by a court of competent jurisdiction, in an action where the appellant invited such finding by testimony under oath.
It is significant that none of the cases cited in the opinion involves a presumption which would have the effect, as here, of completely destroying an erstwhile binding decree of a court of competent jurisdiction. If reliance is had on the invalidity of a previous decree, as was attempted by appellant here, such invalidity first should be determined in a proper proceeding, before substituting proof with mere presumption. There is complete failure of proof that the previous divorce decree was void, such that violence is done to the principle that there must be some finality to a court decree, and it should remain sacred until proven unholy in a proper action by him who claims it void.2 It is difficult *245to believe that we have arrived at a point where mere presumption can destroy the decree of a court, — but in the opinion of the writer the decision in this case reaches that result.
There is no escape from the fact that this decision reverses a trial court’s findings and conclusions, by use of a presumption, where at least some evidence supports the trial court’s decision and rebuts the presumption. Nor is there any escape from the fact that this decision, by using the device of a presumption, effectively and successfully renders impotent and nugatory an otherwise binding decree of a court of competent jurisdiction, upon which there has been made an unpermitted collateral attack, and then only by way of an offer to introduce inadmissible opinion and hearsay evidence.
Salt Lake City v. Industrial Commission, 82 Utah 179, 22 P. 2d 1046. See also 3 A. L. R. 535.
Freeman on Judgments, 5th ed., Vol. 1, sec. 305, p. 602.