Holder v. Scott

ON MOTION FOR REHEARING

The appellee has filed a motion for rehearing. He takes the position that it was stipulated in the trial court that the divorce decree that was entered in Arkansas was a valid decree of divorce between the parties. Appellee attached a certificate by the trial judge to his brief in support of the motion for re-hearing. We will note that the statement of facts as filed in the case contains a certificate of the court reporter, an approval of both the attorneys, and a certificate by the district judge. This court is without jurisdiction to go behind the statement of facts. Gist v. Holt (1943 CCA), 173 S.W.2d 216, W.R., W.M.; Johnson v. Brown (1948 CCA), 218 S.W.2d 317, E.R., N.R.E.; Hawkins v. Western National Bank of Hereford (1912 CCA), 145 S.W. 722, Er. Dism’d; Lawyers Surety Corporation v. San Angelo Tank Car Line, Ltd. (1963 CCA), 365 S.W.2d 212, N.W.H.; 3 T.J.2d 647, Sec. 393.

Appellant took the position in the trial court that the judgment of divorce which was entered by the Arkansas court was void. After the judgment was offered in evidence, appellant, in effect, made a collateral attack upon the same and proved that the judgment was acquired through an act of fraud on the Arkansas Court. Appellant is not bound by the void judgment of the State of Arkansas. 34 T.J.2d 393, Sec. 373.

Much has been written on void judgment. A void judgment is just no judgment at all. It is a nullity and has no force or effect whatever. It is not necessary to take any steps to have a void judgment reversed, vacated or set aside. It may be impeached in any action direct or collateral. 2 Speer’s Marital Rights in Texas, Fourth Edition, 580, Sec. 755; 34 T.J.2d 94, Sec. 227; 34 T.J.2d 177, Sec. 262; 49 *911C.J.S. Judgments § 434, p. 859; 30A Am. J. 197, Sec. 45. A void judgment cannot be cured by subsequent proceeding. 30A Am. J. 199, Sec. 46.

A careful consideration has been given the Motion for Re-hearing, and the same is- respectfully overruled.