Appellant, joined pro forma by her second husband, H. E. Richmond, sued appellee, Sangster, alleging, in substance, that Mrá. Richmond and appellee were married about the year 188S; that their marriage relation continued until the 1st day of October, 1914, when they were legally divorced, and that after said date she married her coplaintiff, H. E. Richmond; that during the existence of the marriage relation between appellant and appellee they accumulated community property of the estimated value of $40,000, consisting of lands in Hans-ford and Sherman counties, real estate in Dalhart, Tex., and certain personal property, consisting of cattle, horses, sheep, hogs, farming implements, etc. She alleges that appel-lee has been disposing of the property since they were divorced, prays for the appointment of a receiver, for the issuance of a writ of injunction, and that upon a final hearing she have partition of the community property, and in the alternative that she have judgment against defendant for a sum of money equal to one-half the value thereof. Appel-lee answered by general demurrer, general denial, and specially denied that the marriage bond existing between himself and the appellant had ever been dissolved; that if the circuit court of Cook county, Ill., or any other court, ever assumed to divorce them he had no knowledge of the proceedings, and that no legal service thereof or notice of such proceeding by legal process or citation was ever issued or served upon him according to law, and that said court had no jurisdiction to render a decree of divorce; that any such attempted decree is of no force or effect on account of fraud practiced by the said Matilda Richmond, in its procurement and the lack of jurisdiction in the court so attempting to grant such divorce. The answer sets out the substance of certain articles of the statute of Illinois applicable to the case, and alleges that Matilda Richmond, being charged by law with knowledge of the provisions of the statute of Illinois, falsely and fraudulently alleged in the petition for divorce, and falsely and fraudulently swore before the court in procuring said divorce, that he deserted her on or about May 15, 1912, and absented himself from her without any reasonable cause for a space of two years, when she well knew that appellee had all the while remained as her husband in their home, and that she willfully abandoned and deserted him without any reasonable cause; that she falsely and fraudulently alleged in her'petition, and swore upon the witness stand, that she was an actual resident of Cook county, Ill., and had been for two years prior to the filing of her suit, when she knew that she was not such resident, but was merely ‘ a transient, and had gone to Illinois for the purpose of procuring a divorce; that, having left her husband without cause, her domicile remained with him in the state of Texas, and for such reason the court had no jurisdiction over her or her husband for the purpose of divorce; that she further fraudulently concealed from the trial court of Illinois the real place of residence and domicile of the appel-lee, for the purpose of preventing him from having actual notice of her divorce suit, by making a false affidavit and filing the same in said cause as a basis for citation by publication, alleging in said affidavit that appel-lee on due inquiry could not be found so that process could be served upon him; that his last known place of residence was Dalhart, Tex., and that upon inquiry his then place of residence could not be ascertained, when she well knew that her husband was then in Hansford county, Tex., with Zulu as his post-office, and could be found there at any time for service of process; that by means of said false and fraudulent .affidavit she procured the notice to be mailed to appellee at Dal-hart, Tex., where he had never resided and did not get his mail, and in consequence thereof he did not get such notice; that such acts constituted a fraud upon the jurisdiction of the court. There are further allegations which become immaterial in the disposition we make of the case. By a supplemental petition appellant excepted generally to appellee’s ánswer and specially upon the ground that the facts therein alleged constituted a collateral attack upon the judgment of a court of general jurisdiction in the state of Illinois, wherein the divorce decree was entered. There are a number of other special excexstions, which it is not necessary to consider. She answered further by general denial, estoppel, and res judicata. It is further alleged that in the year 1904 appellee informed her that she and her children would have to leave their home in Hansford county, whére they had resided for several years, and that he took her and her small children to Dalhart, Tex., and returned to their home; that by the efforts of herself and her minor daughters they accumulated some property in Dalhart, and that after the year 1904, except for very short intervals, they lived separate and apart from each other until 1912, when appellee wholly abandoned her and left her to her own resources. The case was tried at the March term of the district court of Dal-*725lam county, to where It had been transferred upon change of venue, and during the trial appellee moved the court to direct a verdict in his favor. The material parts of the motion are as follows:
“Comes now the defendant, just at the close of the offering of the testimony in the above cause, and points out to the court that the matter alleged in defendant’s answer concerning fraud upon the jurisdiction of the circuit court of Cook county, Ill., in the city of Chicago, with reference to the procuring of notice to the defendant, is established by undisputed and un-contradicted testimony on which there is no room for reasonable minds to differ, and the defendant is entitled to a peremptory instruction in his favor, because of the invalidity of the plaintiff alleged divorce decree. To be more specific, defendant alleges that the following matters are indisputably established:
“(1) That defendant had absolutely no notice or knowledge of any kind of the plaintiff’s divorce suit in Chicago prior to the entry of judgment therein.
“(2) That it was required by the law of Illinois that plaintiff should file an affidavit showing where the defendant could be found, so that process could be served upon him at his last known place of residence, if known, and whether same could be ascertained by the use of diligent inquiry.
“(3) That plaintiff did make an affidavit that defendant on due inquiry could not be found, and that process could not be served upon him; that his last known place of residence was Dal-hart, Tex.; and that upon diligent inquiry his present place of residence could not be ascertained, and caused her attorney in the case to make an affidavit to the same effect.
“(4) That at the time of the making of such affidavit the defendant could have been found' in Hansford county, Tex., on his ranch, and could have been served with process there, and that plaintiff well knew, from having seen him there in September,' 1913, and prior thereto, and from having written to him there letters in 1914, and from correspondence with their children, that defendant’s last known place of residence was not Dalhart, Tex., and that he never resided in Dalhart; that upon any sort of inquiry, diligent or otherwise, plaintiff could have ascertained, and in fact did know, that his then place of residence was Hansford county, Tex., and his post office was Zulu, or Ideal.
“(5) That under the laws of Illinois it was the duty of plaintiff, and her right, to cause a copy of her petition, with a notice of the commencement of her suit, to be delivered to defendant in Texas, 30 days before the commencement of the term of the court, which was never done, and which could have been readily done.
“(6) That at the time of the entry and rendition of plaintiff’s divorce decree in Chicago she was then confronted with knowledge by a return letter filed in the cause, having gone by due process of mail, with proper postage, addressed to defendant at Dalhart, Tex., showing unquestionably that he was not living in or getting his mail at Dalhart, Tex., and that plaintiff, with such knowledge, swore upon the trial of said divorce that she had last seen defendant at his ranch in Hansford county, Tex., and permitted such decree to be rendered without revealing to the court that notice ought to be sent to Hans-ford county; that Dalhart was not in Hansford county, and that defendant’s post office address was Zulu, Tex., or Ideal, Tex., and that such facts indisputably showed that plaintiff obtained her decree of divorce by false affidavit and by fraudulent concealment, and fraudulently prevented the defendant from having such notice of the proceedings as he was plainly entitled to under the laws of Illinois.
“Because the foregoing facts are shown without dispute and without controversy in this record, defendant states that there is no issuable fact to submit to the jury that could validate the judgment granting plaintiff a divorce, and that the facts and evidence uncontrovertedly show fraud upon the jurisdiction of the Illinois court as a matter of law.”
Upon the filing of this motion and the reference thereto attorneys for the parties entered upon a stipulation which was filed in the cause, and contains this recital:
“Be it remembered, at this time, the defendant announced in open court that he would close the introduction of his testimony, and thereupon presented to the court his written motion, asking the court to peremptorily instruct a verdict for the defendant for the reasons stated in the motion set forth, being herein filed, and said motion presented at this time by the agreement of the counsel for the plaintiff stating in open court that they had no further testimony to admit or produce upon any issue raised by the motion; and further admitting that under the evidence there was no issuable fact to be submitted to the jury under said motion, and it being agreed by the counsel that the matters raised by said motion in the light of testimony introduced is purely a question of law.”
[1] Section 12, chapter 22, of the Statutes of Illinois was introduced in evidence, and is in part as follows:
“Notice by Publication. Whenever any complainant or his attorney shall file in the office of the clerk of the court in which his suit is pending, an affidavit showing that any defendant resides or hath gone out of this state, or on due inquiry cannot' be found, * * * so that process cannot be served upon him, and stating the place of residence of such defendant - if known, or tha't upon diligent inquiry his place of residence cannot be ascertained, the clerk shall cause publication to be made in some newspaper printed in his county. * * * And he shall also, within ten days of the first publication of such notice, send a copy thereof by mail, addressed to such defendant whose place of residence is stated in such affidavit.”
Under this article the appellant and her attorney each filed an affidavit, reciting that—
“John C. Sangster, the defendant, on due in-, quiry, cannot be found, so that process cannot be served upon him, and affiant further states that the last known place of residence of such defendant is Dalhart, Tex.; that upon diligent inquiry his place of residence cannot be ascertained.”
It appears that the substituted service was .based upon these two affidavits. The effect *726of the stipulation, when considered in connection with the motion, is to admit the material facts set np in the latter. It, therefore, appears from a consideration of the motion that appellee had no actual knowledge of the divorce suit filed in Cook county, Ill., by appellant; that at the time the affidavits mentioned above were made he was on his ranch in Hansford county, and could have been served with a copy of the petition, and that appellant knew that fact; that she also knew he had never resided in Dalhart, and that his post office was Zulu, or Ideal. This is, in our opinion, sufficient to show a willful fraud committed by appellant upon the Jurisdiction Of the Illinois court and an effort upon her part to prevent appellee from having actual knowledge of the institution of her suit. It was shown that she had previously filed suit against him for divorce in the district court at Dalhart, which she subsequently dismissed; that during her residence in Dalhart she became acquainted with Richmond, who left Dalhart and went to Chicago, either with her or about the same time. While in Chicago, it appears that she had her mail addressed to her at the general .delivery, and the only address ever given by her in Chicago proved to be the place where Richmond resided. When she left Dalhart and went to Chicago she left her furniture in her home at Dalhart, and told her son Tom she was going to Vancouver to see her sister, and told her son, Chris, she wanted to go up there to get a divorce. The city directory of the city of Chicago did not show that' either Mrs. Richmond -or Mrs. Sangster lived in the city. She testified- upon the trial of her case that she did not know her husband's place of residence, and that his last-known place of residence was Dalhart. Under these facts we think the court did not err in directing a verdict for appellee. It is held in several cases in Texas that a decree of divorce obtained in a foreign state may be collaterally attacked to show that the court which rendered it had no jurisdiction, even though the judgment recites all necessary jurisdictional facts. Stuart v. Cole, 42 Tex. Civ. App. 478, 92 S. W. 1040; Morgan v. Morgan, 1 Tex. Civ. App. 315, 21 S. W. 154; Givens v. Givens, 195 S. W. 877; Jones v. Bartlett, 189 S. W. 1107. These decisions seem to be sustained in this holding by the weight of authority, and in accord with the decisions of the state of Illinois. Dunham v. Dunham, 162 Ill. 589, 44 N. E. 841, 35 L. R. A. 70; Field v. Field, 215 Ill. 496, 74 N. E. 443; Davenport v. Davenport, 67 N. J. Eq. 320, 58 Atl. 535; Lister v. Lister, 86 N. J. Eq. 30, 97 Atl. 170; Silvey v. Silvey, 192 Mo. App. 179, 180 S. W. 1071. By the weight of authority in other jurisdictions it is held that a divorce granted either spouse in a fdr-eign jurisdiction upon substituted service is void. Olmstead v. Olmstead, 190 N. Y. 458, 83 N. E. 569, 123 Am. St. Rep. 585; Halter v. Van Camp, 64 Misc. Rep. 336, 118 N. Y. Supp. 545; Ackerman v. Ackerman, 200 N. Y. 72, 93 N. E. 192; Gouch v. Gouch, 69 Misc. Rep. 436, 127 N. Y. Supp. 476; Bruguiere v. Bruguiere, 172 Cal. 199, 155 Pac. 988, Ann. Cas. 1917E, 122; Pettis v. Pettis. 91 Conn. 608, 101 Atl. 13; Thompson v. Thompson, 89 N. J. Eq. 70, 103 Atl. 856; State v. Duncan (S. C.) 96 S. E. 294; Deyette v. Deyette (Vt.) 104 Atl. 232; In re Grossman’s Estate, 263 Pa. 139, 106 Atl. 86, 88. These questions are also briefed and discussed in the notes to Perkins v. Perkins, L. R. A. 1917B, 1039, 1040; Forest v. Fey, 218 Ill. 165, 75 N. E. 789, 1 L. R. A. (N. S.) 740, 109 Am. St. Rep. 249; Joyner v. Joyner, 131 Ga. 217, 62 S. E. 182, 18 L. R. A. (N. S.) 647, 127 Am. St. Rep. 220; Succession of Benton, 106 La. 494, 31 South. 123, 59 L. R. A. 183.
“To render a foreign decree of divorce entitled to recognition in another state so far as the marriage relation is affected, jurisdiction of the person of the defendant must be in some way acquired. There must be notice to the defendant, either by service of process or if the defendant be a nonresident, by such publication or other constructive notice as is required by the laws of the state.” 9 R. C. L. p. 510, § 332.
“It is well settled that each state has exclusive jurisdiction over the marriage status of its citizens, and hence a court of another state has no jurisdiction to decree a divorce between parties where neither has a domicile or residence within the state of the forum. Accordingly, a divorce rendered by the court of a state in which neither party had a legal residence, or domicile, especially where there is no personal service of process upon the defendant within the state of the forum, and she or he does not voluntarily appear, is not entitled to recognition in another state under the full faith and: credit clause of the federal Constitution.” Id. p. 511, § 333.
“The general rule that a judgment of the courts of one state may be collaterally impeached in the courts of another state, if it was procured by fraud upon the legal rights of the party against whom it was rendered, applies to foreign decrees of divorce. It has been held that a wife, who on separation from her husband, goes to another state for the purpose of obtaining a divorce, and brings suit without disclosing the fact that a suit was pending in the state of her former residence, involving the same matters alleged as the cause of divorce and in which she has appeared, is guilty of such fraud as to invalidate a decree of divox-ce obtained by her, although the pendency of the prior suit could not have been pleaded in abatement, or in bar to her divorce suit.” Id. § 340, p. 520.
[2] These authorities and the decisions cited and discussed in them unquestionably sustain the court’s action. It is not necessary for us to decide, and wet do not hold, that a foreign decree, rendered upon substituted service, is void, but we are warranted by the authorities in holding that if it cap *727be shown, as in this, case, that citation by publication was based upon a false affidavit, substituted service is insufficient; and, when it is further shown that by the statutes of the foreign state the plaintiff was required to have transmitted to the defendant a copy of her petition, and by fraud she induced the clerk of the court to send such copy to a post-office where she knew it would not be received by defendant, there has been such á fraud upon the jurisdiction as to render the decree void. We deem it unnecessary to enter into an extended discussion of the principles involved, and content ourselves with reference to the foregoing authorities to sustain us in our holding. The foreign divorce being void, appellant is still the lawful wife of John C. Sangster, the appellee, and is not entitled to maintain this suit ,for a division of the community property.
Believing that the trial judge properly directed a verdict, the judgment is affirmed.
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