1. In the instant case the proceeding is not a statutory motion for a new trial, as provided for in the Code, § 70-301, or the equivalent of such a motion, such as a direct exception to a verdict and decree. Code, § 6-804; Lovelace v. Lovelace, 179 Ga. 822 (1-e), (177 S.E. 685). Consequently it was not demurrable on the ground that the petition failed to set forth a brief of the evidence submitted at the trial of the divorce suit, as is required in a motion for a new trial.
2. Neither is the proceeding a statutory motion to set aside a judgment, as provided in the Code, § 37-219, which authorizes, among other things, setting aside of judgments on account of defects appearing on the face of the record.
3. The proceeding is an original suit in equity for a decree declaring void and of no effect the first and second verdicts and the decree in the divorce suit. The alleged grounds of relief are, (1) that the court was without jurisdiction of the case, because at the time of the filing of the suit for divorce the defendant was a resident of Clayton County, whereas the suit was brought in Fulton County; (2) that on the strength of the husband's repeated statements to the wife "that he was not going through with the divorce," they resumed their marital relations by cohabitation which was continued until the time of the decree; (3) that the last verdict was obtained by perjured testimony.
4. According to the allegations of the petition, the superior court of Fulton County did not acquire jurisdiction in the suit for divorce. The alleged want of jurisdiction was a sufficient ground of attack upon the verdicts and decree of divorce as void and ineffectual.
5. The allegations as to repeated statements of the husband to the wife after suit for divorce was filed, and continued cohabitation in recognition of the marital relations until the husband informed the wife of the decree, were sufficient as grounds of fraud for setting aside in equity the decree of divorce. Hall v. Lockerman, 127 Ga. 537 (56 S.E. 759); Young v. Young, 188 Ga. 29 (3) (2 S.E.2d 622).
6. It is not ground for declaring void and of no effect a decree of divorce that it was based on perjured testimony, where it does not appear that the witness delivering the testimony has been convicted of the offense of perjury. Code, § 110-706; Elliott v. Marshall, 182 Ga. 513 (2) (185 S.E. 831).
7. The petition alleged a cause of action as based on the first and second grounds of attack upon the verdicts and the decree; and consequently the action was not subject to dismissal for the reason that the third ground of attack upon the decree was insufficient.
No. 13158. JUNE 12, 1940. *Page 446 Mrs. May S. Haygood instituted an action in Fulton superior court against Guy B. Haygood. The petition alleged substantially the following. Plaintiff and defendant, having been married, resided in Clayton County. While residing in that county the defendant instituted his suit for divorce in Fulton County. The suit, if properly brought, should have been in Clayton superior court. After the filing of the divorce action the plaintiff (husband) told defendant (wife) "that he was not going through with the divorce," and they again took up cohabitation "as husband and wife until the granting of the final decree in said matter, at which time the defendant told your petitioner that he was divorced from her and that she could seek shelter for herself." In paragraph 4 it was alleged: "That at all times prior to the final hearing and up to the time of the second verdict, defendant told petitioner that he was not going through with the divorce; and that when same was granted it was granted on perjured testimony: (a) That Fulton County superior court did not have jurisdiction of the parties; and (b) that said divorce was irregular, in that the defendant swore falsely in that he stated that a bona fide state of separation existed between the parties at the time of the granting of the second verdict and the awarding of the final decree in said matter." In paragraph 5 it was alleged: "Your petitioner shows that she is without adequate remedy at law." The prayers were: 1. "That the first and second total divorce verdicts rendered in said matter be declared void and of no effect." 2. "That the final decree entered in said matter be declared void and of no effect." 3. "That a decree be entered herein, declaring the divorce heretofore granted in said matter of no force and effect, and fixing the status of the parties as if no divorce had ever been granted;" and for process. The petition was sanctioned by the judge and ordered filed. Process was duly issued, and the defendant was served personally. The defendant demurred on the following grounds: "1. Defendant demurs to said petition, on the ground that the same sets forth no grounds for the relief sought therein. 2. Defendant demurs to said petition, on the ground that said verdict and judgment complained of was taken at the September, 1938, term of the Fulton superior court, and no motion for new trial was filed therein within thirty days from the *Page 447 date of said judgment and decree, as by law provided. 3. That no brief of the evidence adduced upon the trial of the case wherein the judgment and decree is sought to be set aside is attached to said petition. 4. That petitioner is not entitled to the relief sought, by reason of the fact that the matters complained of in the effort to secure the relief sought does not appear on the face of the record, and is therefore bound by all the rules prescribed in a motion for new trial." The judge overruled the demurrer, and the defendant excepted. In the bill of exceptions the decree in the divorce suit was specified as a part of the record necessary to be sent to the Supreme Court. A copy thereof was included in the record. In Watts v. Watts, 130 Ga. 683 (61 S.E. 593), it was held: "The venue of a divorce suit, where the plaintiff and the defendant reside in different counties in this State, is the county of the residence of the defendant. (a) Where both parties reside in different counties in this State, the defendant in a divorce suit can not, by acknowledgment of service and agreement that the case be tried in the county of the residence of the plaintiff, confer power upon the court to render a valid judgment. (b) Where, for reasons indicated in the preceding divisions of this headnote, the court is without jurisdiction of a divorce suit, and the defendant attempts, by waiver or consent, to confer jurisdiction, the trial judge may upon his own motion dismiss the suit, even after the rendition of the first verdict finding in favor of the grant of a divorce." As pointed out above, the divorce suit was on trial, and the case had not proceeded to decree of divorce as in the instant case. Consequently the quoted decision is not binding as a precedent in the instant case, where the divorce case had proceeded to a decree, and the attack is upon that judgment. But the principles of that decision are nevertheless applicable to the instant case. They were thus stated in the opinion: "In actions which are strictly personal, where the interests of third persons are not affected, a defendant may ordinarily waive the jurisdiction over his person, where the court has jurisdiction over the subject matter. Civil Code, §§ 5079, 5080 [Code of 1933, §§ 24-112, 81-503]. Ansley Co. v. O'Byrne, 120 Ga. 618 (48 S.E. 228); Epps v. Buckmaster, 104 Ga. 698 (30 S.E. 959). The plaintiff in error contends *Page 448 that this rule applies to the case at bar. To this contention we can not agree. A divorce suit affects not merely the formal parties before the court, but society at large. 9 Am. Eng. Enc. L. (2d ed.), 728-9 (4). On account of the peculiar interest of the public in the preservation of domestic relations, provisions have been made by the constitution of this State, and by legislative enactment, which take divorce suits out of the rules that govern other actions, and place restrictions around them indicating a policy to hinder facility in the procurement of divorces. This has been true ever since the adoption of the constitution of 1798. In Head v. Head, 2 Ga. 191, 194, it was said: `It must be apparent to the most careless reader that the constitution of 1798 is in restraint of divorces; the wise framers of that instrument were careful to hinder facility in their procurement.' In our present Code we find that the superior court alone has jurisdiction to grant divorces, and that a total divorce can not be granted by that court except upon the concurrent verdicts of two juries at different terms of the court. Civil Code, §§ 2425, 5867 [ §§ 30-101, 2-4201]. Nor can a person obtain a divorce who has not been a bona fide resident of the State twelve months before the filing of the suit. Civil Code, § 2431 [ § 30-107]. Nor can a verdict or judgment by default be taken in a suit for divorce. The allegations of the petition must be established by evidence before the juries. Civil Code, §§ 2440, 5074 [ § 30-113]. Again, `in divorce cases proceeding ex parte, it is the duty of the judge to see that the grounds are legal and sustained by proof, or to appoint the solicitor-general, or some other attorney of the court, to discharge that duty for him.' Civil Code, § 2455 [ § 30-129]. These and other laws peculiar to divorce suits clearly indicate an intention upon the part of the lawmaking power to impede the facility for obtaining divorces; and such purpose can only be attributed to a zealous regard for the well-being of society. Divorce suits affect not only the formal parties to the suit, but the entire social fabric as well. Therefore the provisions of the Civil Code, §§ 5079, 5080 [ §§ 24-112, 81-503], which authorize parties in certain cases to waive jurisdiction, do not apply to a divorce suit. A party may ordinarily waive a right in so far as it affects himself, but not where the waiver might affect others. In fixing the venue for the trial of divorce suits, they were put in a class separate and distinct from all other suits; and it was provided, *Page 449 in article 6, section 16, paragraph 1, of the constitution of the State of Georgia (Civil Code, § 5869 [ § 2-4301]), that `Divorce cases shall be brought in the county where the defendant resides, if a resident of this State; if the defendant be not a resident of this State, then in the county in which the plaintiff resides.' This provision of the constitution is mandatory and exhaustive, and has no qualification which authorizes jurisdiction to be conferred, by consent or otherwise, elsewhere than as expressly provided in the excerpt which we have just quoted. This provision of the constitution is in keeping with the general policy of the law already pointed out; and, in view of the welfare of society, there was manifestly an intent to withhold from the parties to the suit, who were not solely to be affected, the power, by waiver, to confer jurisdiction upon courts in counties other than those provided for by the express terms of the constitution. The superior court of Paulding County was without jurisdiction to render a valid judgment in this case, and it was proper for the judge, at any time while the suit was pending, to dismiss the same upon his own motion."
In Odum v. Odum, 132 Ga. 437, 439 (64 S.E. 470), it was said: "It is true that in a suit for divorce jurisdiction of the court can not be waived so as to permit a suit for divorce to be brought in a county other than that of the residence of the defendant." Citing Code, § 10 [ § 102-106], and Watts v.Watts, supra. In Jones v. Jones, 181 Ga. 747 (184 S.E. 271), alimony founded on a divorce suit was awarded the wife. In a proceeding for contempt in failing to pay the alimony the husband was adjudged in contempt, and the judgment was reversed. The following headnotes reveal the case and decision: "1. In a court which has jurisdiction of the subject-matter of a suit, jurisdiction of the person may be acquired of one who voluntarily waives his right to object and submits himself to the jurisdiction of the court. To this general rule cases of divorce and alimony present exceptions. The petitioner in an action of divorce carries the burden of proving the jurisdiction of the court; and this duty is no less incumbent upon the defendant who asks for alimony. In neither instance can jurisdiction be conferred by consent or by waiver. 2. By constitutional provisions, statutory enactments, and judicial pronouncement, a public policy has been declared and enforced, looking to the use of the closest scrutiny in all cases that affect the severance of the matrimonial *Page 450 relation. The law not only requires that divorces must be granted by different juries at several terms of the court, but it forbids that a divorce shall be granted if there be evidence of collusive consent. 3. In a petition to set aside a judgment, the petitioner must prove by the preponderance of the evidence that the judgment is void; but where no motion to set aside the judgment is made, one whose interest is affected thereby may attack the judgment directly, if shown by the record to be absolutely void ab initio; this as matter of law, and without filing a petition to set aside the judgment. 4. In the present case the husband alleged that the wife was not a resident of the State of Georgia. The wife in her answer alleged she was a resident of the State of Georgia. The verdict in favor of divorce is void, for the reason that the husband could sue only in the county of his wife's residence. If the answer of the wife be taken as true, or if she was in fact a non-resident of the State, there having been no service by publication or otherwise, the judgment for divorce was void. 5. It does not appear from the petition and answer, construed together, that either of the parties to the divorce proceeding was properly within the jurisdiction of the court; and this case is one in which if there was no divorce there could be no alimony. . . 7. The court erred in finding that the original judgment for divorce was not void, and therefore erred in requiring the payment of alimony and in attaching the respondent as for contempt."
In the opinion by Mr. Chief Justice Russell, it was said, in part: "The question as to the validity of the judgment or decree upon which the alimony in this case is based is necessarily controlling. If the court was without jurisdiction to render the judgment, it is void; and the question arises as to whether there is any legal proceeding that can breathe life into a corpse. Art. 6, sec. 16, par. 1, of the constitution declares that `Divorce cases shall be brought in the county where the defendant resides, if a resident of this State; if the defendant be not a resident of this State, then in the county in which the plaintiff resides.' It appears from the petition upon which the final decree of divorce and alimony is based that it was alleged that `Anna D. Jones is a non-resident of the State of Georgia (but petitioner does not know the city or town in which she resides).' Also, `Petitioner was then and has been since, a bona fide resident of the State of Georgia twelve months next before the *Page 451 filing of this application.' These are the only paragraphs of the petition which allege the residence of either party or throw any light on the subject of jurisdiction. An examination of the record shows that there was no service upon the defendant as a nonresident, by publication or otherwise. The wife, however, appeared in person and by attorney at the time of trial, and filed an answer in which she denied the allegation that she was a non-resident of Georgia. Upon these pleadings the case went to trial, and two consecutive verdicts were rendered granting the divorce as prayed for; and the second verdict was followed by the grant of alimony to the wife.
"Then, did the court have jurisdiction? For without jurisdiction the judgment is void. Even if the wife were willing to submit to the jurisdiction of the superior court of Bibb County, and if the husband selected it as the forum in which he desired to bring his suit, the question arises whether they could confer jurisdiction by consent in a case of divorce, where under the policy of the law a divorce by consent or collusion is never granted. If the plaintiff wished to bring a suit against his wife for divorce, and she was not a non-resident of the State, he would have to proceed in the county of her residence in order to procure a valid divorce. The statement of the petitioner and the denial in the answer, without anything further appearing on the face of the proceeding, merely doubled the doubt and confusion as to which court in Georgia had jurisdiction. Jones asserts that the court should not have attached him for contempt, because the original judgment is void. Counsel for the defendant in error assert with skill and great vehemence that the judgment is not void, or, if originally for any reason void, that it has been ratified by the payment of alimony on several occasions; and that the ruling of the court on a prior effort to modify the judgment is now res judicata, and the respondent, not having taken exception to that judgment, is bound thereby. The Code of 1933, § 110-709, declares that `The judgment of a court having no jurisdiction of the person or subject-matter, or void for any other cause, is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it.' In Towns v. Springer, 9 Ga. 130, it was said: `The assailability of a judgment of a court of competent jurisdiction for irregularity [italics mine] is one thing — of a judgment of a court not having jurisdiction, for the want of jurisdiction, is a very different *Page 452 thing. In the latter case the judgment may be impeached whenever and wherever it is sought to be used as a valid judgment, no matter in what way it is proposed to be used.' In this case, in the hearing on the attachment for contempt, there was uncontradicted evidence that Mrs. Jones is a citizen of Fulton County, Georgia, was such at the time when the divorce proceeding was instituted, and has been such ever since. To our minds, it follows that this judgment was void ab initio. It matters not how often it may have been submitted to, or what has been done in various ways, as cited by counsel, if it was void for want of jurisdiction of the court to render it, no spark could be inspired which could give it validity. The original suit, upon the evidence before the court, could not have been legally brought elsewhere than in Fulton County; and the answer of the defendant impeaching the statement of the petitioner that she was a non-resident was not at all in conflict with the evidence introduced that she was a resident of Fulton County."
As indicated above, neither of the cited cases was a suit in equity, as in the instant case, seeking to declare verdicts and a decree of divorce void and of no effect, on the ground that the court granting the divorce was without jurisdiction. InMcConnell v. McConnell, 135 Ga. 828 (70 S.E. 647), andFuller v. Curry, 162 Ga. 293 (133 S.E. 244), the principles announced above were recognized, but on the principle of estoppel it was held that the defendant, who had participated in the divorce suit by acknowledging service and jurisdiction of the court, could not afterward come into equity and ask the affirmative relief of setting aside the verdicts and decree for want of jurisdiction. In the McConnell case it was said that in the circumstances the plaintiff in the equity suit did not come with clean hands. This is different from the instant case, where no such facts appear upon which to deny the defendant entry to the court of equity. The case on demurrer stands on the allegation of the petition charging want of jurisdiction because the defendant, a resident of this State did not reside in Fulton County when the suit for divorce was instituted. In the face of such allegation, no presumption of jurisdiction can prevail on the basis of the verdicts and decree of divorce. The equitable suit is in the same court, and between the same parties, as the divorce suit had been, and is a direct attack on the verdicts and decree of divorce. Compare Bowers v. Dolen, 187 Ga. 653 (2) (1 S.E.2d 734); *Page 453 Thomas v. Lambert, 187 Ga. 616 (2) (1 S.E.2d 443). On principles already stated, the petition alleged sufficient ground for declaring the verdicts and decree of court void for want of jurisdiction of the court. This is not in any way opposed to the ruling in Bilbo v. Bilbo, 167 Ga. 602 (146 S.E. 446), or in Hunter Benn Co. v. White, 144 Ga. 580 (87 S.E. 775). Those cases did not involve divorce suits, and were not such as the defendant could not individually waive the jurisdiction thereof. Nor is the present ruling opposed to the decision inJohnson v. Johnson, 188 Ga. 800 (4 S.E.2d 807), where the question of jurisdiction was actually litigated in the divorce suit, which resulted in verdicts and a decree of divorce. The rulings announced in headnotes other than the fourth do not require elaboration.
Judgment affirmed. All the Justices concur.
JENKINS and DUCKWORTH, JJ., concur in the judgment of affirmance, but dissent from the ruling that the allegations of the petition stated a cause of action on the ground that the court rendering the divorce decree was without jurisdiction.