dissenting: This is a civil action to annul and to have adjudged void ab initio a purported marriage between the plaintiff and the defendant on the alleged ground that the defendant had a living husband by a preceding marriage at the time the ceremony of marriage between the plaintiff and the defendant was celebrated, heard upon a motion to strike part of the complaint.
G.S. 51-3 provides: “All marriages . . . between persons either of whom has a husband or wife living at the time of such marriage . . . shall be void.” G.S. 50-4 is codified under Chapter 50, Divorce and Alimony, of the General Statutes, and is entitled “What Marriages May Be Declared Void on Application op Either Party,” and reads: “The Superior Court in term time, on application made as by law provided, by either party to a marriage contracted contrary to the prohibitions contained in the Chapter entitled Marriage, or declared void by said Chapter, may declare such marriage void from the beginning, subject, nevertheless, to the second proviso contained in Section 51-3.” This proviso has no application to bigamous marriages.
To obtain relief from the obligations of a marriage, which he contends is bigamous, the plaintiff attacks the divorce decree rendered in the case of Shaver v. Shaver. If plaintiff cannot maintain this action, he may be, and probably will be, required to pay alimony to the defendant who has contracted a bigamous marriage with him, and his person, earnings and property may be subject to the pains and penalties of an alimony decree without due process of law.
According to the allegations of the complaint asked to be stricken, the defendant obtained in the Superior Court of Durham County for the cause set forth in G.S. 50-6 a decree of absolute divorce from her former husband, Floyd N. Shaver, on the ground that she and Floyd N. Shaver had lived separate and apart for two years, when in fact she and Floyd N. Shaver during the said two-year period had lived together as man and wife almost continuously. The complaint further alleges that Floyd N. Shaver filed an answer in her divorce action against him admitting the truth of the allegations of her complaint that they had lived separate and apart for two years, and that her divorce from Floyd N. Shaver is void and “is the result of a misrepresentation and fraud upon the Superior Court of Durham County and should be set aside and declared null and void.” Carpenter’s complaint further alleges “that the purported marriage between him and the defendant is void ab initio for that at the time of the said purported marriage ceremony between this plaintiff and defendant, the defendant was then married to Floyd N. Shaver, and that said bonds of matrimony between her and Floyd N. Shaver had not been dissolved by death, valid divorce or otherwise.”
*300The record in the instant case does not state whether or not Mrs. Shaver filed an affidavit with her divorce complaint in Shaver v. Shaver, as required by G.S. 50-8. On the date that the instant case was argued before us, there was argued the case of Mary K. Shaver (the defendant here) v. Floyd N. Shaver. The same counsel appeared in that case as appeared in the instant case. The opinion in Shaver v. Shaver is handed down contemporaneously with the opinion in Carpenter v. Carpenter. The instant case and Shaver v. Shaver involved the validity of the same divorce decree. In the record in Shaver v. Shaver this is the affidavit that Mary K. Shaver (the defendant here) filed with her complaint, which is the identical complaint set forth in the instant case and which affidavit reads as follows:
“North Carolina Durham County
Mary K. Shaver, being duly sworn, deposes and says: That she is the plaintiff in the above entitled action; that she has read the foregoing complaint and that the same is true of her own knowledge, save and except those matters and things therein stated upon information and belief, and as to those she believes it to be true; that the said complaint is not made out of levity or by collusion between husband and wife, and not for the mere purpose of being freed and separate from each other, but in sincerity and truth, and for the causes mentioned in the complaint; that the facts set forth in the complaint as grounds for plaintiff’s divorce have existed to her own knowledge for at least two years prior to the filing of this complaint; that this plaintiff has been resident of the State of North Carolina for a period of more than six months next preceding the filing of this action.
Mary K. Shaver.
Subscribed and sworn to before me this 9th day of May 1946.
Carrie B. Straughn Notary Public (Seal)
My commission expires: May 6, 1948.”
In my opinion, the court should take judicial notice of its own records in respect to this affidavit filed with her complaint in that inter-related proceeding, particularly where the issues are the same, or are practically the same, and the inter-related case is specifically referred to in the instant case. U. S. v. Pink, 315 U.S. 203, 216, 86 L. Ed. 796, 810; Dimmick v. Tompkins, 194 U.S. 540, 48 L. Ed. 1110; Bienville Water Supply Co. v. Mobile, 186 U.S. 212, 46 L. Ed. 1132; Freshman v. Atkins, 269 U.S. 121, 124, 70 L. Ed. 193, 195; West v. L. Bromm Baking Co., 166 Va. 530, 186 S.E. 291; 31 C.J.S., Evidence, pp. 625-626. If judicial *301notice is taken of this affidavit, and if Mrs. Shaver did file an affidavit with her complaint, it was, according to the allegations of Carpenter’s complaint, a false affidavit knowingly made, and the court had no jurisdiction to grant her a decree of divorce. Young v. Young, 225 N.C. 340, 34 S.E. 2d 154. If judicial notice is not taken of this affidavit, and if Mrs. Shaver filed no affidavit with her complaint, it was equally fatal, and the court had no jurisdiction to grant her,a decree of divorce. Woodruff v. Woodruff, 215 N.C. 685, 3 S.E. 2d 5. This affidavit affirmatively appears on the face of the record in the divorce action of Shaver v. Shaver, which the plaintiff is assailing in the instant action.
Causes for absolute divorce are statutory in North Carolina. G.S. 50-5 and G.S. 50-6; Ellis v. Ellis, 190 N.C. 418, 130 S.E. 7.
If the allegations of Carpenter’s complaint asked to be stricken are true, did the Superior Court of Durham County have jurisdiction to try the action of Shaver v. Shaver, and grant Mrs. Shaver, the defendant here, a decree of absolute divorce?
This Court said through Winborne, J., in Henderson v. Henderson, 232 N.C. 1, 59 S.E. 2d 227: “Under this statute (G.S. 50-6), in order to maintain an action for divorce, the husband and wife shall have (1) lived separate and apart for two years; and (2) the plaintiff, husband or wife, shall have resided in the State of North Carolina for a period of one year. These two requirements are jurisdictional. Oliver v. Oliver, 219 N.C. 299,13 S.E. 2d 549; Young v. Young, 225 N.C. 340, 34 S.E. 2d 154; Sears v. Sears, 92 F. 2d 530. If either one or the other of these elements were not existent, the court would not have jurisdiction to try the action, and to grant a divorce. And if the court has no jurisdiction over the subject matter of the action, the judgment in the action is void. A void judgment is one which has a mere semblance, but is lacking in some of the essential elements which would authorize the court to proceed to judgment. Harrell v. Welstead, 206 N.C. 817, 175 S.E. 283; Monroe v. Niven, 221 N.C. 362, 20 S.E. 2d 311.”
Barnhill, J., (now C. J.) said for the Court in Woodruff v. Woodruff, supra: “It is well established in this Court that the affidavit the statute (G.S. 50-8) requires in connection with a complaint for divorce is jurisdictional. Holloman v. Holloman, 127 N.C. 15, 37 S.E. 68; Nichols v. Nichols, 128 N.C. 108, 38 S.E. 296. A complaint in a divorce action accompanied by a false statutory affidavit, knowingly made, is as fatal as a complaint without the affidavit.”
In Young v. Young, supra, Devin, J., speaking for the Court said: “In an action for divorce the affidavit required by the Statute in connection with the complaint is jurisdictional, G.S., 50-8, and a complaint accompanied by a false statutory affidavit, if it be properly so found, would be regarded as insufficient to empower the court to grant a decree of divorce; and the correct procedure for relief against the judgment is *302by motion in the cause.” In speaking of a motion in the cause as the correct procedure, the opinion has reference to a motion made by a party to the divorce decree, and not to a stranger to it.
We have consistently held that in an action for divorce under our statutes the affidavit required to be filed with the complaint by G.S. 50-8 is jurisdictional, and a complaint accompanied by a false statutory affidavit whereby a fraud and imposition is practiced upon the court and jurisdiction is apparently acquired, when jurisdiction is in fact lacking, and the court was procured by such fraud and imposition practiced upon it to exercise jurisdiction, which it would not have exercised, and had no authority to exercise, if the true facts had been disclosed, is regarded as insufficient to give the court jurisdiction to render a valid decree of divorce. A decree of divorce entered under such circumstance is void. Holloman v. Holloman, 127 N.C. 15, 37 S.E. 68; Nichols v. Nichols, 128 N.C. 108, 38 S.E. 296; Martin v. Martin, 130 N.C. 27, 40 S.E. 822; Hopkins v. Hopkins, 132 N.C. 22, 43 S.E. 508; Johnson v. Johnson, 142 N.C. 462, 55 S.E. 341; Grant v. Grant, 159 N.C. 528, 75 S.E, 734; Woodruff v. Woodruff, supra; Young v. Young, supra.
Mrs. Shaver’s affidavit attached to her complaint is a vital part of the record in that case. Carpenter’s complaint here alleges that in the divorce case of Shaver v. Shaver, the defendant Floyd N. Shaver filed an answer admitting all the allegations of his wife’s complaint to be true. According to the allegations of Carpenter's complaint, Mrs. Shaver by false allegations in her complaint, to which she attached a false statutory affidavit, that she and her husband had lived separate and apart for two years prior to the institution of her action, and her husband Floyd N. Shaver by filing a verified answer in the divorce action falsely admitting the allegations of his wife to be true, practiced a fraud and imposition upon the Superior Court of Durham County whereby that Court apparently acquired jurisdiction to hear and determine her divorce action, when in truth and in fact jurisdiction was lacking, and that Court was procured by such fraud and imposition and collusion of her and her husband Floyd N. Shaver to exercise jurisdiction and grant her a divorce, which jurisdiction the Superior Court of Durham County had no authority to exercise, and which it would not have exercised, if the true facts had been disclosed. If Carpenter can prove as true those allegations in his complaint, the divorce decree in Shaver v. Shaver rendered by the Superior Court of Durham County is utterly void. Carpenter’s attack on the divorce decree is based upon false swearing in the verified pleadings, fraud and collusion, which false swearing, fraud and collusion prevented the Superior Court of Durham County from having jurisdiction over the subject matter of the action óf Shaver v. Shaver.
*303This question is presented: Can the plaintiff Carpenter, the second spouse of Mary Kelly Shaver Carpenter, annul his marriage to her in an action instituted for that purpose, if he can prove that the decree of absolute divorce rendered in Shaver v. Shaver was void and a nullity, and at the time of the purported marriage between him and Mary Kelly Shaver, she had a living husband, Floyd N. Shaver, from whom she was not validly divorced?
In passing upon that question we must bear in mind the clear distinction in the rules of law as to parties and privies to a judgment and strangers to a judgment. We must also bear in mind the rules of law where the judgment is void by reason of lack of jurisdiction in the court rendering it.
I agree with the statement in the majority opinion that “cases such as McCoy v. Justice, 199 N.C. 602,155 S.E. 452, and Horne v. Edwards, 215 N.C. 622, 3 S.E. 2d 1, in which ‘extrinsic’ fraud and ‘intrinsic’ fraud are distinguished, relate to the proper procedure in each instance by a party to the original action.” Those cases have no application here for the reason that Carpenter is a stranger to the action of Shaver v. Shaver.
It is elementary that ordinarily only parties and privies are bound by a judgment. Thomas v. Reavis, 196 N.C. 254, 145 S.E. 226; Rabil v. Farris, 213 N.C. 414,196 S.E. 321; 30 Am. Jur., Judgments, Sec. 220.
In Thomas v. Reavis, supra, Stacy, C. J., said for the Court: “Judgments are binding on parties and their privies as to all issuable matters contained in the pleadings, but they are not binding on strangers to the proceeding or those who have had no opportunity to be heard.”
“It is a well settled general rule that whenever the rights of third persons are affected they may collaterally attack a judgment for fraud committed by one party or for collusion of both parties.” 31 Am. Jur., Judgments, Sec. 596, where many cases are cited in support of the text. The rationale of the rule is that the party to the principal case is a stranger to the judgment rendered in the previous action, where he was not directly interested in the subject matter thereof, and had no right to make defense, adduce testimony, cross-examine witnesses, control the proceedings, or appeal from the judgment.
A challenge to jurisdiction may be made at any time. Baker v. Varser, 239 N.C. 180, 79 S.E. 2d 757; Spaugh v. Charlotte, 239 N.C. 149, 79 S.E. 2d 748; Anderson v. Atkinson, 235 N.C. 300, 69 S.E. 2d 603; Miller v. Roberts, 212 N.C. 126, 193 S.E. 286; Johnson v. Finch, 93 N.C. 205, 208.
It is well established law that a void judgment is no judgment, is a nullity without life or force, no rights can be based thereon, and it can be attacked collaterally by anyone whose rights are adversely affected by it. Reid v. Bristol, 241 N.C. 699, 86 S.E. 2d 417; Casey v. Barker, *304219 N.C. 465, 14 S.E. 2d 429; Dunn v. Wilson, 210 N.C. 493, 187 S.E. 802.
A judgment is void when there is a want of jurisdiction by the court over the subject matter of the action. Clark v. Homes, 189 N.C. 703, 708, 128 S.E. 20; Hanson v. Yandle, 235 N.C. 532, 70 S.E. 2d 565.
In Monroe v. Niven, 221 N.C. 362, 20 S.E. 2d 311, Barnhill, J., (now C. J.) said for the Court: A void judgment may “be disregarded and treated as a nullity everywhere. It is coram non judiceFurther on in the opinion it is said: “ 'A nullity is a nullity, and out of nothing-nothing comes’ . . . 'The passage of time, however great, does not affect the validity of a judgment; it cannot render a void judgment valid.’ ”
Stacy, C. J., said for the Court in Harrell v. Welstead, 206 N.C. 817, 175 S.E. 283: “ 'But a void judgment is no judgment, and may always be treated as a nullity.’ A nullity is a nullity, and out of nothing nothing comes. Ex nihilo nihil fit is one maxim that admits of no exceptions.”
In Stafford v. Gallops, 123 N.C. 19, 31 S.E. 265, the Court said: “A void judgment is in legal effect no judgment. No rights are acquired or divested by it. It neither binds nor bars anyone, and all proceedings founded upon it are worthless.”
In 17 Am. Jur., Divorce and Separation, Sec. 481, it is said: “A judgment or decree of divorce which is void for want of jurisdiction is generally subject to collateral attack, notwithstanding a subsequent marriage or the death of the party by whom the divorce was procured.” In 17 Am. Jur., Divorce and Separation, Sec. 484, it is said: “It is generally held and recognized that a stranger may collaterally attack a decree of divorce for want of jurisdiction in the court entering it where his property rights are injuriously affected thereby.” See also: Adams v. Adams, 154 Mass. 290, 28 N.E. 260, 13 L.R.A. 275.
The majority opinion relies upon Simmons v. Simmons, 228 N.C. 233, 45 S.E. 2d 124; Rodriguez v. Rodriguez, 224 N.C. 275, 29 S.E. 2d 901; Guerin v. Guerin, 208 N.C. 457, 181 S.E. 274; Harrell v. Welstead, supra; Fowler v. Fowler, 190 N.C. 536, 130 S.E. 315, to support its statement that Carpenter cannot maintain his action because the lack of jurisdiction does not appear on the face of the record. In all of these cases the motion to set aside the judgments were made by parties to the actions.
However, the going is rough in the majority opinion, when it attempts to get around the cases of Henderson v. Henderson, supra; Young v. Young, supra, and Woodruff v. Woodruff, supra. In Young v. Young, it is held that a party to a divorce decree can obtain relief when there is a false statutory affidavit, which is jurisdictional, by showing the jurisdictional defect by extrinsic evidence. The holding in *305Young v. Young merely reiterates the law as laid down in Holloman v. Holloman, supra; Nichols v. Nichols, supra; Martin v. Martin, supra; Hopkins v. Hopkins, supra; Johnson v. Johnson, supra; Grant v. Grant, supra, and Woodruff v. Woodruff, supra. It does not seem to me to be sound law or sound public policy to permit a party to the cause in a divorce action to show by extrinsic proof the falsity of the statutory affidavit, which is jurisdictional, and to deny such permission to an utter stranger to the divorce decree who is in a position like Carpenter.
The case of Pridgen v. Pridgen, 203 N.C. 533,166 S.E. 591, is directly in point as to the right of Carpenter to maintain his action. In the Pridgen case the second headnote in our Reports states: “Where a wife attempts to marry again when no valid divorce a vinculo had been obtained from her living husband, such second attempted marriage is absolutely void and may be annulled by the husband of the second attempted marriage in an action instituted for that purpose. C.S. 1658, 2495.” C.S. 1658 is now G.S. 50-4, and C.S. 2495 is now G.S. 51-3. The Court said: “Between void and voidable marriages the law recognizes a distinction which applies to the status of the parties before the marriage relation is dissolved. A voidable marriage is valid for all civil purposes until annulled by a competent tribunal in a direct proceeding, but a void marriage is a nullity and may be impeached at any time. Schouler’s Marriage, etc., sec. 1081; Johnson v. Kincade, 37 N.C. 470; Crump v. Morgan, 38 N.C. 91; Williamson v. Williams, 56 N.C. 446; Taylor v. White, 160 N.C. 38. In Gathings v. Williams, 27 N.C. 487, the principle is stated in these words: 'where the marriage is between persons, one of whom has no capacity to contract marriage at all, as where there is want of age (“want of age” being obiter, Koonce v. Wallace, 52 N.C. 194), or understanding, or a prior marriage still subsisting, the marriage is void absolutely and from the beginning, and may be inquired of in any court. For, although in such case there may be a proceeding in the ecclesiastical court, it is not to dissolve the marriage, but merely, for the convenience of the parties, to find the fact and declare the marriage thereupon to have been void ab initio, and no civil rights can be acquired under such a marriage. It is said to be no marriage, but a profanation of marriage, and the factum is a nullity.’ The General Assembly has provided that all marriages between persons either of whom has a husband or wife living at the time of such marriage shall be void, and that the aggrieved party may seek relief in the Superior Court, which has succeeded to the functions of the ecclesiastical courts of England. C.S. 1658, 2495; Gathings v. Williams, supra; Johnson v. Kincade, supra; Setzer v. Setzer, 97 N.C. 252; Watters v. Watters, 168 N.C. 411. The plaintiff accordingly brought suit, not for divorce, but to have the marriage relation between the defendant and himself adjudged void from the beginning, on the ground that at the time their *306marriage was solemnized the defendant had a husband living. Taylor v. White, supra.”
In 120 A.L.R. there is an elaborate comment note beginning on page 815, entitled “Attack on divorce decree by second spouse of party to divorce.” In this note are cited a number of cases where the right to attack is sustained, and where the right to attack is denied. Among the cases where the right to attack is sustained, there is cited on page 819 our case of Pridgen v. Pridgen, supra.
In 12 A.L.R. 2d there is an annotation captioned “Standing of Strangers to Divorce Proceeding to attack validity of Divorce Decree,” beginning on page 717 and ending on page 748. On pages 733-734 of this annotation a list of cases is given where the second spouse has a standing to attack the divorce decree, and here again is cited our case of Pridgen v. Pridgen, supra.
In Williams v. Williams, 63 Wis. 58, 53 Am. Rep. 253, this is the headnote in the American Reports Series: “J. took R. to wife in 1860, and very soon permanently deserted her. In 1864 J. married the plaintiff. In 1868 J. and the plaintiff separated. In 1870 while living near J. the plaintiff publicly married W. Subsequently the plaintiff got a divorce against J. by default for desertion. Held, in this action for dower in the estate of W., (1) that the presumption was against the validity of the marriage of 1864; (2) that the plaintiff was not estopped from showing that that marriage was void.” In the opinion the Court said: “The marriage between the plaintiff and Jones being absolutely void ab initio, it was good for no legal purpose, and its invalidity may be maintained in any proceeding in any court between any parties, whether in the life-time or after the death of the supposed husband or wife, or both, and whether the question arises directly or collaterally. (Citing authorities.) It is otherwise where the marriage is voidable merely.”
In Old Colony Trust Co. v. Porter, 324 Mass. 581, 88 N.E. 2d 135, 12 A.L.R. 2d 706, it was held the executor of a will apparently revoked by a subsequent marriage of the testatrix, may, for the purpose of showing the invalidity of such marriage, collaterally attack a divorce decree previously granted the new spouse without jurisdiction. In its opinion the Court said: “The industry of counsel has supplied us with a number of cases from other jurisdictions, apparently representing the weight of authority, which in general support the principle of collateral attack for want of jurisdiction upon decrees of divorce by persons not parties to the divorce proceedings whose rights would be impaired if effect were given to the decrees as against them.” The Court then cites a long list of cases in support of its statement, and then gives a shorter list of cases taking a different view.
*307In Williams v. North Carolina, 325 U.S. 226, at page 230, 89 L. Ed. 1577, at page 1582, 157 A.L.R. 1366, at page 1369, the Court said: “It is one thing to reopen an issue that has been settled after appropriate opportunity to present their contentions has been afforded to all who had an interest in its adjudication. This applies also to jurisdictional questions. After a contest these cannot be relitigated as between the parties. Citing authorities. But those not parties to a litigation ought not to be foreclosed by the interested actions of others . . .”
It is well established law that in criminal prosecutions, such as for bigamy, adultery or fornication, the State has a right to impeach the validity of a foreign decree divorcing the defendant from a former spouse, where such decree is relied upon by the defendant as a matter of defense. S. v. Williams, 224 N.C. 183, 29 S.E. 2d 744, affirmed in Williams v. North Carolina, 325 U.S. 226, 89 L. Ed. 1577; S. v. Herron, 175 N.C. 754, 94 S.E. 698; Anno. 12 A.L.R. 2d, page 734.
A rule “which, in the absence of elements of estoppel chargeable to him personally, denies to a party the right to attack a divorce decree otherwise subject to attack, solely because he is the second spouse of the divorced party contracting the second marriage, places upon him (or her) the obligations of a valid second marriage, without at the same time entitling him (or her) to its benefits, and places the enjoyment by him (or her) of such benefits at the mercy of third persons.” Anno. 120 A.L.R., page 817.
The plaintiff Carpenter was in no sense a party to the divorce proceeding in Shaver v. Shaver so as to become bound thereby, or in privity with the parties to that divorce action. According to Carpenter’s complaint he did not meet Mrs. Shaver until the year after her divorce decree from Floyd N. Shaver. Carpenter could not participate in the trial of the divorce action of Shaver v. Shaver, and he could not have appealed from it: he was a stranger to it. He took no part in the divorce case. He was in no way concerned in the result of it at the time, and would never have become concerned, if he had not afterwards married Mrs. Shaver. Carpenter’s interests are materially affected. If the allegations of his complaint asked to be stricken are true and he cannot have his day in court to prove them, he is put under obligation to support a woman who is not in law his wife, and who had no capacity to contract a marriage with him. He may be required to pay alimony and maintenance to one who has a prior living husband legally undivorced. A decree of divorce rendered by a court without jurisdiction is void, and ought not to be recognized or enforced, and especially where the court is led to exercise jurisdiction by perjury and fraud of one of the parties. A court should be vigilant to see that the forms of judicial sanctity are not used as a cloak for fraud and injustice. We have held this day that Carpenter cannot attack the validity of the divorce decree *308in Shaver v. Shaver by a motion in the cause. Shaver v. Shaver, post, 309, 93 S.E. 2d 614. If the allegations of Carpenter’s complaint are true, and if he cannot assail the divorce decree in Shaver v. Shaver, by an independent action, Mrs. Shaver, who is the legal wife of Floyd N. Shaver, may compel him to support her, and may compel him to pay her alimony, and a formal decree of absolute divorce by the Durham County Superior Court will be the means which will enable her to perpetrate such an injustice. A court cannot be converted into a shield to protect fraud. The subj ect matter of this suit is the validity of the purported marriage between Carpenter and the defendant. If Carpenter cannot assail in any way in our Courts this void judgment materially affecting his rights, there will be a denial of his constitutional right of due process of law. In Galpin v. Page, 18 Wall. 350, 368, 369, 21 L. Ed. 959, 963, Mr. Justice Field said for the Court: “It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his day in court, by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard. Judgment without such citation and opportunity wants all the attributes of a judicial determination.”
The gist of plaintiff’s action to annul his purported marriage to Mrs. Shaver is based upon the fraud and perjury perpetrated by the defendant on the Superior Court of Durham County in procuring it to exercise jurisdiction in the divorce action of Shaver v. Shaver, which it would not have exercised, and had no jurisdiction to exercise, if the true facts had been disclosed. In my opinion, the very carefully reasoned opinion in Pridgen v. Pridgen, supra, is right in holding that a second spouse may annul in an action instituted for that purpose his purported marriage with a wife on the ground that the divorce decree obtained by his wife purporting to dissolve her former marriage was void and a nullity, no elements of estoppel chargeable to Pridgen personally appearing. And no elements of estoppel chargeable to Carpenter personally appearing in the instant case I think that the Court should follow the Pridgen Case here. We are not confronted by the question of a second spouse, by his own acts, taking an active part in the divorce proceeding. If a second spouse should be held to be estopped on that ground to impeach the validity of the decree, it is not authority for a general proposition that a second spouse, who was a complete stranger to the divorce decree, has no standing to challenge its validity. The complaint states a cause of action, which the plaintiff has a right to maintain. The allegations of his complaint asked to be stricken are relevant and material.
I cannot agree with the conclusions reached in the majority opinion that, accepting the challenged allegations of Carpenter’s complaint as true, the divorce decree in Shaver v. Shaver at most is voidable, and not void, and that Carpenter will not be heard to attack the divorce decree. *309Carpenter alleges in his complaint that he learned that Mary K. Shaver was not legally divorced from her husband, Floyd Shaver, after she abandoned him, Carpenter. “The doctrine of estoppel is for the protection of innocent persons, and only the innocent may invoke it . . . A person may not predicate an estoppel in his favor on, or assert such estoppel for the purpose of making effective, obtaining the benefit of, or shielding himself from the results of, his own fraud, violation of law, wrongful act, or other inequitable conduct in the transaction in question . . .” 31 C.J.S., Estoppel, Sec. 75. If the allegations of Carpenter’s complaint are true, Mrs. Shaver cannot by estoppel preclude Carpenter from assailing her divorce decree procured by her perjury and fraud. If Carpenter were permitted his day in court and proved the allegations of his complaint, the unfortunate situation in which Mrs. Shaver would find herself would be of her own making. At the time of her divorce decree Carpenter did not know her. If the challenged allegations of Carpenter’s complaint are true, Mrs. Shaver did a wrong to Carpenter when she married him for the reason that she was still married to Floyd N. Shaver. Certainly, if Mrs. Shaver seeks to recover alimony from Carpenter, due process and the law of the land require that Carpenter some day, somewhere, must have an opportunity in court to be heard on his allegations that Mrs. Shaver contracted a bigamous marriage with him. “The words of Webster, so often quoted, that 'by the law of the land’ is intended ‘a law which hears before it condemns,’ have been repeated in varying forms of expression in a multitude of decisions.” Powell v. Alabama, 287 N.S. 45, 77 L. Ed. 158, 84 A.L.R. 527.
In writing this dissenting opinion I have assumed that the allegations in the complaint asked to be stricken are true. If the plaintiff could have a trial, he might fail completely to prove these allegations. But, whether he can or not, in my opinion, he has a right to have his day in court before a judge and jury.
I vote to affirm the ruling of the lower court.
Barnhill, C. J., concurs in this dissent.