(dissenting).
At the outset, I would emphasize that neither Katherine Boudreaux nor her first husband, against whom she asserts she obtained a divorce, ever lived in Mississippi prior to or at the time when the divorce was obtained. This fact is not disputed. The wife .frankly testified that she had no intention at any time of residing in Mississippi, and, at the most, spent about one week there in 1950 when she went to Mississippi to testify and obtain her divbrce'.." She even alleged that her husband; the defendant, was living in Louisiana when the suit was brought.
Mississippi law grants jurisdiction to the Chancery Courts in suits for divorce only when one of the parties has been an actual • bona fide resident within the state “for one year next preceding the commencement of the suit.” Mississippi Code of 1942, § 2736. It must, therefore, be concluded that the Mississippi courts never had jurisdiction of the persons, of either the wife or husband whom it purported to divorce. Louisiana was their state of domicile, and Louisiana’s laws controlled their marriage relationship at all times.
The majority opinion is founded solely ttpon the proposition that the 'Mississippi decree of divorce cannot be collaterally attacked by defendants here because they could not have attacked that decree in Mississippi. Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552 (1951) is relied upon to sustain this position.
It is my opinion that the Johnson Case does not support the view announced by the majority and also that the law of Mississippi permits a collateral attack upon a divorce. decree.
The Full Faith and Credit Clause, Article IV, Section 1, of the Constitution of the United States, requires that a judgment of a state court should have the same credit, *997validity, and effect in every other court of the United States, which it had in the state where it is pronounced. Hampton v. McConnel, 3 Wheat. 234, 4 L.Ed. 378 (1818). See also 28 U.S.C.A. § 1738. But this doctrine is interpreted by decisions of the Supreme Court of the United States to mean that full faith and credit is to be accorded only when the jurisdiction of the court in another state’ is not impeached, either as to the subject matter or the person. Thompson v. Whitman, 18 Wall. 457, 21 L.Ed. 897 (1874). See also Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945).
Thus, a state court judgment can be made a judgment in a sister state “only if the court purporting to render the original judgment has power to render such a judgment.” Williams v. North Carolina, supra, 325 U.S. at 229, 65 S.Ct. at 1095. That is to say, the court rendering the judgment must have jurisdiction.
Where divorce is concerned, the power of courts to grant decrees has always, under our system of law, been founded upon domicile. Andrews v. Andrews, 188 U.S. 14, 23 S.Ct. 237, 47 L.Ed. 366 (1903); Bell v. Bell, 181 U.S. 175, 21 S.Ct. 551, 45 L.Ed. 804 (1901).
The United States Supreme Court, in interpreting the Full Faith and Credit clause, has decreed certain standards of procedural due process to be observed before judgments changing the status of parties to a marriage may be accorded full faith'and credit in a sister state. It' seeks thereby to permit a state to vindicate its social policy against the selfish actions of those outside its borders. “The State of domiciliary origin should not be bound by an unfounded, even if not collusive, recital in the record of a court of another State.” Williams v. North Carolina, supra, 325 U.S. at 230, 65 S.Ct. at 1095.
Collateral attack of a divorce decree made in another state by proof that the court had no jurisdiction, even' when the record purports to show jurisdiction, has long been recognized. German Savings & Loan Society v. Dormitzer, 192 U.S. 125, 24 S.Ct. 221, 48 L.Ed. 373 (1904). And, until the doubt raised by the Johnson Case, it was clear that when the decree was not susceptible to collateral attack in the rendering state, the decree could nevertheless be attacked in a sister state where there was no participation by the defendant in the divorce proceeding and the defendant had not been accorded full opportunity to contest the jurisdictional issues. Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429 (1948).
This requirement of jurisdiction has not been changed. There was no intention to abandon the jurisdictional requirement in the Johnson Case as this language demonstrates :
“ * * * The Framers intended it (the Full Faith and Credit Clause) to help *999weld the independent states into a nation by giving judgments within the jurisdiction of the rendering state the same faith and credit in sister states as they have in the state of the original forum.
« * * * It leaves each state with power over its own courts but binds litigants, wherever they may be in the Nation, by prior orders of other courts with jurisdiction.” (Emphasis added.)
Thus, where full faith and credit is claimed for a divorce decree in a sister state, inquiry is to be permitted into the authority of the divorce-decreeing state to render that decree — the truth or existence of the crucial fact of jurisdiction upon which the power to decree rests can always be explored. Williams v. North Carolina, supra, and Sherrer v. Sherrer, supra. We recognized these principles in Eaton v. Eaton, 227 La. 992, 81 So.2d 371 (1955) and Navarette v. Laughlin, 209 La. 417, 24 So.2d 672 (1946).
In the most recent case, Eaton v. Eaton, supra, we reviewed the decisions which sought to establish a standard for guidance when jurisdiction of a divorce-decreeing state is brought into question. The decisions reviewed were Cook v. Cook, 342 U.S. 126, 72 S.Ct. 157, 96 L.Ed. 146 (1951); Johnson v. Muelberger, supra; Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451 (1948) and Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429 (1947).
These cases require that the issue of domicile of at least one of the parties to the divorce be “squarely litigated in a truly adversary proceeding” in the state rendering the decree. See also Williams v. North Carolina, supra. To satisfy the requirement, the court in the Sherrer Case found it necessary that there be “participation by the defendant” in a proceeding in which he had been “accorded full opportunity to contest the jurisdictional issues.” In Coe v. Coe, as in the Sherrer Case, the decree of divorce was one which was rendered after proceedings in which there was participation by both plaintiff and defendant and in which both parties were given full opportunity to contest the jurisdictional issue. Defendant there appeared personally and gave testimony at the hearing. Through her attorney she filed pleadings in answer to the complaint and successfully invoked the jurisdiction of a Nevada Court to obtain the decree of divorce. This was held to satisfy the requirements of participation, and full faith and credit was accorded that judgment.
Johnson v. Muelberger involved a like factual situation, and a like result was obtained. That the Johnson Case involved participation by both of the parties in the proceedings leading to the disputed divorce decree is made emphatically clear by the court’s statement of the issue at the very outset of its opinion when Mr. Justice Reed wrote:
*1001“The right of a daughter to attack in New York the validity of her deceased father’s Florida divorce is before us. She was his legatee. The divorce was granted in Florida after the father appeared there and contested the merits. The issue turns on the effect in New York under these circumstances of the Full Faith and Credit Clause of the Federal Constitution.” (Emphasis added.)
As this language points out, the Johnson Case applies to a situation where both parties appeared personally or by attorney in the proceedings and had every opportunity to contest the jurisdictional issue. It does not apply to the case at bar where the defendant husband made no appearance.
Surely the waiver executed by the defendant husband in St. Mary Parish before a Notary Public there and handled by the wife’s attorney thereafter — for the husband was not represented by counsel — could not satisfy the intendment of the law that the divorce must be “squarely litigated in a truly adversary proceeding.” This is not a “participation by the defendant” in a proceeding in which he has been “accorded full opportunity to contest the jurisdictional issues.” This is not a case where the husband “appeared and contested the merits.” “Appearance” in an action in Mississippi can “only be effected by a plea or by appearance in proper person without plea in open court.” Chambliss v. Chambliss, 182 Miss. 480, 181 So. 715, 717 (1938); Hemphill v. Hemphill, 34 Miss. 68, 69 (1857) ; Byrne, Vance & Co. v. Jeffries, 38 Miss. 533 (1860). A waiver cannot supply that requirement. That waiver was not, therefore, a personal appearance; it was noncommittal; it admitted nothing; it denied nothing; it put nothing at issue. It is not the equivalent of an answer in the form of a general denial — for it neither admits facts nor places' them at issue by denial, which any answer would certainly do. '
I find nothing in the Johnson Case which declares that divorce is no longer within the exclusive power of the domiciliary state so far as the Full Faith and Credit clause is concerned. It is fair to conclude that “The Supreme Court cases fall short of announcing that a state has the power to grant a divorce entitled to full faith and credit on a jurisdictional basis other than domicile.” Paulsen, The Power to Divorce — Two Legislative Acts. 40 A.B.A.J. 330 (1954). Sister states “cannot be compelled under the * * * clause * * * to enforce decrees of another state unless the respective courts of the state entertained jurisdiction over the subject matter by virtue of being the domicile of at least one of the parties.” Swanson, Migratory Divorce: The Sherrer Case and the Future — A Prophecy. 40 A.B.A.J. 672 (1954).
In the Johnson Case the Court reiterated-the rule that “a state by virtue of the clause must give full faith and credit to an out-of-state divorce by barring either party to that *1003drtfbrte who has been personally served or' who hás entered a- personal appearance from collaterally attacking the decree.” In the case at bar the defendant husband had not been personally served nor, as- the facts clearly demonstrate, had he entered a personal appearance as contemplated by • the cases. Davis v. Davis, 259 Wis. 1, 47 N.W.2d 338 (1951) ; Staedler v. Staedler, 6 N.J. 380, 78 A.2d 896, 28 A.L.R.2d 1291 (1951); Brasier v. Brasier, 200 Okl. 689, 200 P.2d 427. (1948). The ruling in the Johnson Case, therefore, is based upon a truly adversary proceeding. That is not the case in Mrs. Boudreaux’s- divorce suit.
What did the Johnson Case mean when it said:
“When a divorce cannot be attacked for lack of jurisdiction by parties ' actually before the court or strangers in the rendering state, it cannot be attacked by them anywhere in the Union.” ?
By considering all of the court’s pronouncements in the Johnson Cáse, to which I have previously alluded, it becomes quite evident that there was no intention to abandon the requirement that there be jurisdiction to render a valid divorce. And the Johnson Case and all of its pronouncements apply only to -a situation where there is a truly adversary proceeding and “appearance” which conferred jurisdiction on the rendering state.
Moreover, the majority opinion purports, in one instance, to. distinguish Eaton v. Eaton, 227 La. 992, 81 So.2d 371 (1955) on the tenuous argument that there was no showing that the waiver signed by 'the defendant wife was ever filed in the proceedings. It appears so obvious that the waiver-had been filed that the point seems hardly worth considering. For would the waiver have been mentionéd in the case if it had not been filed ?
I am further of the opinion that the decree could have been collaterally attacked in Mississippi, for there is no statutory prohibition against such an attack; and the cases relied upon to support the conclusion that there could be no collateral attack on this judgment in Mississippi .do not support-that conclusion. See Chambliss v. Chambliss, 182 Miss. 480, 181 So. 715 (1938); Kirby v. Kent, 172 Miss. 457, 160 So. 569, 99 A.L.R. 1303 (1935); Hester v, Hester, 103 Miss. 13, 60 So. 6 (1912).
Those cases merely held that the evidence, was insufficient to sustain a collateral attack. They did not hold that a collateral attack could not be entertained in Mississippi if the evidence supported the attack. I would say that the majority-has failed to draw a distinction between those cases, where a collateral attack is permitted but does not succeed on its merits and those cases where the collateral attack is not permitted by reason of a procedural bar.
In the case before us, the collateral attack would clearly succeed because the Mississippi Court had no jurisdiction. Our *1005court, by its decision, is raising a shield against that attack. By doing so it is abdicating to another state Louisiana’s right to determine the marriage status of parties ■truly domiciled within her borders.- In doing so the court is according full faith and credit to a divorce judgment rendered by a state without jurisdiction and, for that reason, rendered under circumstances which do not meet the due process require- ■ ments of the State or Federal Constitutions.
I do not believe the jurisprudence requires that such a judgment be accorded full faith and credit. Henderson, Due Process as a ■ Limitation on Full Faith and Credit, 4 Baylor L.Rev. 202, 206 (1952).
I respectfully dissent.