Cratin v. Cratin

ON SUGGESTION OF ERROR. The appellant suggests that we failed, in our former decision herein, to decide one question presented by the record. This is true, but our failure so to do was not altogether our fault.

But that aside, the question is one that will confront the court below on a return of the case thereto, and should be decided. The question is the sufficiency, vel non, of a plea filed after the overruling of the demurrer to the appellee's petition. This plea alleged, in substance, that the appellee had, for more than thirty years, known of the existence of this decree of divorce, but delayed instituting any proceedings to have it set aside until after her husband's death. The plea was heard on the question of its efficiency and was overruled. It should have been sustained.

The alleged defect in the decree is that the affidavit on which publication was made for the appellee, a non-resident, did not meet the requirements of section 3421, Code 1892, and in our former opinion we held that the affidavit appearing in the record is defective. The decree does not recite that publication was made for the appellee; nevertheless the decree is not void, having been rendered by a court of general jurisdiction. It cannot be collaterally attacked and remains in full force and effect unless and until set aside in a direct proceeding for that purpose. Cotton v. Harlan, 124 Miss. 691, 87 So. 152. For aught that now appears, the court may have had before it another and sufficient affidavit. Brotherhood of Railroad Trainmen v. Agnew,170 Miss. 604, 155 So. 205.

The appellee was under no obligation to institute a proceeding to set aside the decree until she acquired knowledge thereof. According to the appellant's plea, she did acquire this knowledge more than thirty years before her husband's death. The question then is, Does this delay on the part of the appellee to institute a proceeding to set aside the decree constitute such laches as will bar her from now instituting and maintaining a proceeding for that purpose?

One may become estopped from complaining of a defective judgment or decree by accepting the benefit thereof with knowledge of its rendition, and may forfeit the right to complain thereof by laches. 1 Freeman on Judgments (5 Ed.), section 265; 34 C.J. 362, and 15 R.C.L. 694. What the appellee here did, assuming that the allegations of the plea are true, was to accept a release from her marital obligations, and wait, for thirty years, until her husband died, to institute a proceeding to set aside the decree, thereby rendering it impossible for the divorce issue to be tried, which would result, should the decree be set aside, in her becoming entitled to a portion, at least, of her husband's property, when, had the decree been set aside during his lifetime, he might have been able to have proven his right to a divorce. On the other hand, he was without the right to have the decree set aside, it having been rendered at his instance with knowledge, actual or presumed, of its irregularity, Freeman op. cit. section 263, 34 C.J. 347, and had she died during his lifetime, he could have asserted no marital rights in her property, if any she had. Under such circumstances, it would seem, in equity and good conscience, that she should not be permitted to complain of the decree. Freeman op. cit. sections 271, 272. Cf. Brooks v. Spann, 63 Miss. 198; Metcalfe v. Perry,66 Miss. 68, 5 So. 232; Adams v. Belt, 136 Miss. 511, 100 So. 191, and McCray v. McCray, 137 Miss. 160, 102 So. 174.

Our former judgment will be set aside, and another rendered affirming the decree overruling the demurrer, but reversing the decree holding the plea insufficient.

So ordered.