Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 340
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340 STEPHENS V. STEPHENS. [Tyler Term,
Opinion of the court.
is pending jurisdiction to render a judgment in personal. Bishop
on Marriage and Divorce, 157-164, and the authorities cited and discussed;
Freeman on Judgments, 58-, and authorities cited; Cooley's
Constitutional Limitations, 401-406.
It is provided by the laws of this state that service on nonresident
defendants may be made by publication, or by actual service
of a citation and a copy of the petition on the defendant without
the state. R. S., 1230-1234.
In suits of this character, if there be no actual service on the defendant
made within the state, or acceptance of service, and no
appearance by the defendant, then, in the absence of a substantial
compliance with the laws which permit service on a defendant to be
otherwise made, a court acquires no jurisdiction to enter a decree
granting a divorce. Edrington v. Allsbrooks, 21 Tex., 189; Atkins
v. Atkins, 9 Neb., 194; Hafern v. Davis, 10 Wis., 445; Fontaine v.
Houston, 58 Ind., 316; Bradley v. Jamison, 46 Iowa, 69.
The evidence in this cause shows, with all reasonable certainty,
that the citation or notice and copy of the petition, in the cause in
which the judgment sought to be set aside in this proceeding was
rendered, were never delivered to Mrs. Stephens; and it tends to
show that a false return was made, and that, with knowledge of
that fact, it was imposed upon the court by the appellee.
The statute required personal service on Mrs. Stephens, service by
publication not having been made (R. S., 1232), and, as such service
was not made, the court acquired no jurisdiction to render the decree.
Witt v. Kaufman, 25 Tex. Sup., 385; Edrington v. Allsbrooks,
21 Tex., 188. It may be that, even in a collateral proceeding, a
judgment rendered under such circumstances ought not to be held
conclusive; this, however, is not a collateral proceeding.
The evidence tends to show that the person to whom citation or
notice and copy of petition were sent, and who delivered them to
another to serve, was informed by that other that no one of the
papers had been delivered to Mrs. Stephens.
If that person was the agent of T. W. Stephens, and such is the
inference from the facts found, then he stands in law charged with
knowledge that the return made was false; and his use of it, as if
and for a true return, was a fraud upon the court as well as upon
his -wife, which of itself would be sufficient to require the decree
thus obtained to be set aside. 2 Bishop on Marriage and Divorce,
753 et seq., and cases cited; Freeman on Judgments, 99; Webster
v. Reid, 11 How., 460.
The power of courts to vacate judgments rendered by them, on
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/362/: accessed May 3, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .