On Motion for Rehearing.
Appellants have filed an unusually vigorous motion for rehearing, attacking the original opinion; and because the motion is teeming with assertions and statements unwarranted and unsupported by either the opinion, the record, or the law, it becomes our duty to consider the motion in detail.
The first ground is that this court erred in assuming as a fact, in the decision, that Matilda Richmond had gone to Chicago for the purpose of procuring a divorce from the appellee, when the question of her bona fide residence in Illinois at the time she filed her petition was a controverted issue in the trial, and should have been submitted to the jury. We did not assume that she had gone to Chicago for the purpose of procuring a divorce from the appellee. We merely recited some potent facts from the record tending to show that that was her purpose. We were not called upon to assume either way' because, under the record, it was an immaterial question what her purpose was in going to Chicago. In this ground of the motion it is stated that her purpose in going there was a controverted issue. In subdivision (a) of the seventeenth ground of the motion it is stated that her bona fide residence in Cook county was not questioned, and to the same effect is the sixth assignment of error. Both statements cannot be true; but for the purpose of this opinion we will admit that both are true, and still appellant is not entitled to a rehearing, because our decision is predicated upon her fraud upon the jurisdiction of the Illinois court, in making an admittedly false affidavit as a basis for service of notice upon her«husband.
[3] The second ground asserts that this court erred in holding that the question of the bona fide residence of the appellant in Illinois was not an immediate or controlling issue in the trial of the cause, and that the validity of the Illinois divorce decree depended upon the truthfulness of the facts stated in the affidavit for service rather than the good faith of the party making the affidavit. We made no such holding, and no such statement can be found in the opinion, but we do hold it now. The appellee’s motion for judgment after the evidence closed charged that her affidavit and the affidavit of her attorney upon which the substituted service was attempted to be based were both false and fraudulent. Immediately upon filing such motion appellant’s counsel prepared a stipulation, the effect of which is to admit the charges of falsehood and fraud upon the jurisdiction of the court. Under this state of the record, her bona fide residence in Illinois is unimportant If she made a false affidavit as a basis for process, she could not have made it in good faith. By the stipulation her counsel admitted its falsity. In such case there can be no good faith shown .or presumed in the making of the affidavit. The case of Haddock y. Haddock, decided by the Supreme Court of the United States, 201 U. S. 562, 26 Sup. Ct. 525, 50 L. Ed. 867, and a number _of other cases cited in the original opinion, settle this question against appellant’s contention.
The third ground of the motion says that we erred in finding as a fact that when appellant made the affidavit for notice by publication she acted in bad faith and intended to perpetrate a fraud upon 'the jurisdiction of the Illinois court, and further asserts that this was a disputed issue in the trial of the cause. It was a disputed issue during the trial, but when at the close of the testimony her counsel, by solemn written stipulation, admitted that the affidavit was false, that settled the question, and we either had to find that she acted in bad faith, or find contrary to the stipulation, which we were not authorized to do. It is true that the seventh assignment of error complains of the trial court’s action in not permitting her to testify that she acted in good faith when she made .the affidavit, but this objection was waived when the stipulation admitting fraud was subsequently filed.
The fourth ground "of the motion is that we erred in holding in effect that under the Illinois divorce statute the term “place of residence” “means the same thing in law as post office address,” or place where the defendant at that very time could be found, for the - reason that the Illinois statute required that the affidavit fqr publication state the last known place of residence of the defendant, and not his then post office address or the place where he then might be found. The statute of Illinois required the clerk to send a copy of the notice “by mail, addressed to the defendant, whose place of residence is stated in the affidavit.” The affida*728vit states “tkat tlie last-known place of residence of suck defendant is Dalkart, Tex.,” and, furtker, “tkat upon diligent inquiry kis place of residence cannot be ascertained.” Botk statements were, by tke stipulation considered in connection witk tke motion, admitted to be false, and are skown by tke record to kave been willfully false. Mail must, in tke nature of tkings, go to some post office in order to reaek tke addressee’s place of residence. Ske so framed ker affidavit tkat tke clerk was not able to send notice tq eitker place, although she knew botk kis post office address and place of residence.
[4] Tke fifth ground asserts tkat we erred in holding as a matter of law and under controverted facts tkat at tke time tke affidavit for notice for publication was made tke defendant in the divorce case did not reside at Dalkart, Tex., while tke uncontra-dicted evidence showed tkat tke plaintiff for many years before going to Illinois resided at Dalkart, and' tkat it followed as a matter of law that tke legal residence of the defendant was Dalkart, Tex., regardless of where he stayed or. spent kis time. We did not hold it as a matter of fact. In Texas the erring wife cannot fix tke domicile of tke husband, Speer’s Law of Marital Rights, §§ 72, 73, 403. There is not a line of evidence in the record which even remotely tends to show that tke appellee ever fixed, or intended to fix, kis residence at Dalkart, Tex.
[5] Tke sixth ground is tkat we erred in holding tkat tke failure of the appellant to serve tke defendant with a copy of ker petition was willful fraud, because tke Illinois statute in suck cases does not require service of copy of petition upon a .nonresident defendant, but merely tkat a copy of tke published notice of suit should be sent by mail to kis last known place of residence, and not to kis post office address, or to tke place where he might be found. This ground is a mere quibble. In tke first place, we made no suck holding. Where tke word “petition,” instead of “notice,” was used in the original opinion is where we were summarizing tke facts admitted in effect by tke stipulation and tke motion. Paragraph 5 of tke motion is tkat under tke laws of Illinois it was tke duty of plaintiff and ker right to cause a copy of ker petition, witk a notice of tke commencement of ker suit, to be delivered to defendant in Texas, 30 days before tke commencement of the term of the court, which was never done, and which could kave been readily done. Tke language of tke stipulation is, in part:
“Be it remembered at this time, defendant announced in open court tkat he would close tke introduction of his testimony, and thereupon presented to tke court kis written motion, asking tke court to peremptorily instruct a verdict for tke defendant for tke reasons stated in tke motion set forth being herein filed, and said motion presented at this time by tke agreement of counsel for tke plaintiff, stating in open court tkat they had no further testimony to admit or produce upon any issue raised by the motion, and furtker admitting tkat under tke evidence there was no issuable fact to be submitted to tke jury under said motion, and it being agreed by tke counsel that tke matters raised by said motion, in tke light of testimony introduced, is purely a question of law.”
Attorneys are authorized, to stipulate concerning any fact to be established by tke evidence. Tke effect of this stipulation is, when considered witk tke fifth ground of tke motion, tkat the laws of Illinois required her to serve tke defendant with a copy of ker petition as well as a copy of tke notice. We would kave to set tke stipulation aside to hold otherwise.
[6] Tke seventh ground is tkat we erred in holding tkat the validity of tke Illinois divorce decree depended solely on tke truthfulness of tke facts stated in tke affidavit for service by publication or tke good faith of tke party making tke affidavit. We did so hold, and the holding is correct, and is sustained by every authority cited on tkat point in tke opinion. Appellant asserts in this ground that tke error is in so holding, rather than in holding tkat tke validity of tke decree depended upon tke bona fide residence of tke plaintiff within the state of Illinois at the time of filing ker petition. If by ker false affidavit she perpetrated a fraud upon the jurisdiction of the court, it becomes an immaterial inquiry as to her bona fide residence within tke state of Illinois. It was not necessary for us to discuss tkat question. Her bona fide residence in Illinois would not validate a decree in ker favor rendered there, when ske sought to enforce rights based upon it in tke state of Texas, if tke decree was obtained without jurisdiction. This question is also settled in tke Haddock Case. We did not discuss tke question of ker bona fide residence in Illinois, because it was not necessary; but* since appellant repeatedly in tke motion asserts that ske was a bona fide resident, we will discuss it. The facts show tkat ske formed the acquaintance of and associated witk her coplaintiff herein, Richmond, while ske was living at Dalhart, tkat he departed for Chicago, and tkat ske either went witk him or followed in a short time. While in Chicago, ske had ker mail addressed to ker at general delivery, and tke only address ske ever gave proved to be tke place where Richmond resided. When ske left Dalkart for Chicago ske left ker furniture in ker home at Dalkart; she told ker son Tom ske was going to Vancouver to see her sister, and told her son Chris ske was going to Chicago to get a divorce. Although she claims to have resided in Chicago nearly two years, the city directory of tkat city *729does not show that either Mrs. Richmond or Mrs. Sangster ever lived there. The facts further show that she made an unsuccessful attempt to get a divorce before she went to Chicago, and dismissed her suit without a trial upon the merits, and that as soon as she thought she was divorced she came back to her home and her furniture- in Texas, bringing her coplaintiff with her, and filed this suit It is immaterial, as said, for us to discuss the bona tides of her residence in Illinois, but under the decisions, not only of the state of Illinois, but of every other state whose decisions we have read, these facts are sufficient to show that When she went to Chicago it was not with an animus manendi, and if the court had submitted the issue to the jury and the jury had so found it would have been the duty of the trial judge to set the verdict aside and impanel a jury with less gullibility. Under these facts, if it became necessary, the appellee could have successfully attacked the divorce decree in Chicago and had the same set aside upon the ground that she was not a bona fide resident of Illinois at the time she filed her suit. This is clear from the language of the Illinois Supreme Court in' Albee v. Albee, 141 Ill. 550, 31 N. E. 153, Way v. Way, 64 Ill. 406, and the cases therein cited. In line with the Illinois - cases is Stuart v. Cole, 42 Tex. Civ. App. 478, 92 S. W. 1040; and the other Texas cases therein cited. The rule in such cases is that merely going to a state for the purpose of securing a divorce and residing there the required length of time, but without any intention of remaining there permanently or indefinitely, is not sufficient to give jurisdiction in divorce proceedings. Bechtel v. Bechtel, 101 Minn. 511, 112 N. W. 883, 12 L. R. A. (N. S.) 1103, and note. It is further held that the intention, coupled with the acts of the party, must both be considered. What is here said disposes of the ninth ground in the motion.
[7] The eighth ground asserts that we erred in holding in effect that the action for divorte in the state of Illinois was an action in personam, when the Supreme Court of the state of Illinois, in construing its diyorce statutes, holds that such an action is one in rem. In the first place, we did- not make any such holding, either in fact or in effect. We purposely avoided discussing that question. The Stuart Case, supra, holds that such a proceeding is an action in rem. There is no concord in the holdings of the various courts upon the question. In so far as the decision of this case is concerned, it is immaterial whether a divorce proceeding is an action in rem or an action in person-am. .When a judgment rendered in either case is procured in a court of foreign jurisdiction by willful fraud upon the jurisdiction of the court, the judgment may be collaterally attacked, and all the authorities cited in the original opinion which discuss the question so hold. ,
It is said in the tenth ground that we failed to follow the construction of the Illinois statutes given to them by the Supreme Court of Illinois. On the contrary, we followed the decisions of the Illinois courts to the letter, in so far as they construed the Illinois statutes. It was held in the Haddock Case by the Supreme Court of the United States that the full faith and credit clause of the federal Constitution is not binding upon the state courts in considering divorce decrees rendered in foreign jurisdictions. If there wére any decisions of the Illinois courts holding otherwise, they-would be controlled by the holding of the Supreme Court of the United States in the Haddock Case, which court is the court of last resort in construing the federal Constitution.
[8] The remaining grounds of the motion are simply a reiteration of the matters already considered, except in the fourteenth ground it is asserted that because, within two or three months after Matilda Richmond procured her divorce in Illinois, she remarried and came to Dalhart, and because the appellee often visited her there, he recognized the validity of the decree of divorce, and is estopped to deny her right to recover her interest in the community estate. In other words, the proposition is that a decree of a Chicago court, procured through fraud and falsehood, may be vitalized and rendered valid by the act of a defendant, who was never made a party to the suit, and knew nothing of the action until after the decree was rendered, by subsequently visiting the plaintiff and by failing to go to Illinois and attack the judgment because of fraud. Such a holding would open the door for the rendition of divorce decrees by collusion, which is condemned by the Texas statute and in jurisdictions of other states. The proposition is too absurd to require, discussion.
[9] The whole trouble with appellant’s counsel in this case is that thejt entered into the stipulation in the record under the impression that the Chicago judgment, which recited service and upon its face showed jurisdiction, could not be collaterally attacked by -appellee in this state, because of the fraud perpetrated by appellant upon the jurisdiction of the Chicago court. They entered into the stipulation believing that such was the law. This is shown by their pleadings; it is further shown by their brief from beginning to end; it was manifested during the oral argument upon the submission of the case; and even the motion for rehearing shows that they have a lingering hope that such is or will be declared the law. We think the fact of fraud was overwhelmingly established by the evidence, but *730that becomes immaterial in the light of the agreement that the affidavits were false. No effort was made in the trial court, by'motion for new trial, to set aside the stipulation as being improvident, and its effect cannot be avoided in this court. We are bound by the fact as admitted, and in the light of the motion and the stipulation, which together submitted to the trial court the bare proposition of law whether such fraud upon the jurisdiction would invalidate the decree, the trial judge could do nothing else than peremptorily instruct the jury to find for the appellee.
The motion is overruled.