In re Pusey, 180 Cal. 368 (Cal. 1919)

LENNON, J.

For the third time this case is here on appeal. The question heretofore presented and now again presented for review involves the correctness of an order of the low-er court admitting the will of Gertrude C. Pusey to probate upon the petition of the respondent, S. H. Finley. The appellants are Henry F. Pusey, who contested the probate of the will, and C. S. Crookshank, who, as nominee of the said Henry F. Pusey, petitioned for letters of administration upon the estate of the deceased. These appellants now, as heretofore, contend that the will in question was revoked by the marriage of the testatrix to Henry F. Pusey. The respondents, on the other hand, contend that the testatrix never in fact became the wife of Pusey, because he had never been validly divorced from his former wife. In 1893, a decree of divorce in favor of Henry F. Pusey was entered by an Oregon court of competent jurisdiction, which recited that jurisdiction of the defendant had been obtained by publication of summons. The respondents- assert, however, that the decree of divorce was void for want of jurisdiction over the defendant, because there was no sufficient affidavit for

the publication of summons. The said decree was admitted in evidence. It contains, among other things, a recital that service of summons by publication had been ordered “upon due and proper affidavits. ...” However, only one affidavit to support the order for publication of summons appeared in the record of the divorce action. This affidavit was decreed by the trial court to be insufficient as a basis for the order of publication of summons, because it contained no averment or attempted averment that due diligence had been employed to ascertain the residence of the defendant in the divorce action or that such residence could not have been ascertained by the exercise of due diligence.

Upon the first trial in the probate proceeding, it was not affirmatively shown that the defendant in the divorce action was alive at the-time of Pusey’s marriage to the testatrix. Upon an appeal to this court, it was then held that a presumption should be raised in favor of the validity of the marriage, whereby it should be assumed that the defendant in the divorce action was dead at the time of the marriage. The order of the lower court admitting the will to probate was reversed for the error of the court in failing to consider this presumption. (Estate of Pusey, 173 Cal. 141, [159 Pac. 433].)

A second trial in the probate proceeding was thereupon had, wherein it was shown and found that the defendant in the divorce action was alive at the time of Pusey’s marriage to the testatrix. Upon the appeal in that case, this court emphasized the fact that the decree of divorce recited that service of summons by publication had been ordered “upon due and proper affidavits. . . . ’’ It was held that this recital imported that more than one affidavit was filed to obtain the order wherefore, thfe attack on the judgment being collateral, it would be presumed in its favor that there was at least one other affidavit in addition to the defective affidavit appearing in the record; that such second affidavit was sufficient and that it was lost after being duly filed. For the error of the lower court in failing to consider this presumption the order admitting the will to probate was again reversed. (Estate of Pusey, 177 Cal. 367, [170 Pac. 846].)

A third trial was had. Inasmuch as any possible objection to the allowance of such a new trial is fully and finally answered in the opinion rendered in the second appeal in this

ease (177 Cal. 367, [170 Pac. 846]), we need not again consider the point here. Conflicting evidence" was introduced bearing on the issue of the filing of a second affidavit to support the order for publication of summons. The court found that no such affidavit was in fact filed and again made ■ an order admitting the will to probate.

The appellants attack the order upon various grounds:

[1] In support of the first contention, appellants lay great emphasis upon a statement in a former decision of this case that a recital in a foreign judgment of facts sufficient to give the court jurisdiction could be impeached only by proof of necessity inconsistent with the recital. But the words, “of necessity, ’ ’ refer to the nature and not to the weight of such independent proof. If there was a bare preponderance of evidence of a nature of necessity inconsistent with the recital, that would be sufficient to impeach it.

It was proved that the register of actions recorded the filing of but one affidavit in the divorce action in question. Of course a second affidavit might have been filed and never recorded. But an examination of the files for a period of six months before and six months after the filing of the complaint in the divorce action was proved to have resulted in failure to discover a second affidavit. This evidence was of a nature necessarily inconsistent with the recital that proper affidavits were filed, but it might be urged that a second affidavit, though filed, might have been not only not recorded but also lost. To prove that such was the case appellants placed Senator Brownell on the stand. He had been Pusey’s attorney in the divorce action in question. The material portion of his testimony relied on by the appellants reads as follows : “My recollection is absolutely that my affidavit was defective on the ground that I did not show sufficient diligence. Now 'that is my idea. Now, although I don’t say that positively, but it must have been that because I can see

right in that affidavit that I left it out. I can’t remember the details, but I know the judge told me my affidavit was wrong and I came back here and saw Pusey and made an additional affidavit, and I am satisfied it was to show that he exercised the proper diligence in trying to ascertain what her residence was. Now, that is my recollection. I cannot in all these years go into detail, because I don’t know.” It is significant to observe that Brownell here expressed his idea of the preparation and not of the filing of the alleged second affidavit. Moreover, it was the province of the trial judge to pass upon the credibility of the witness. Numerous depositions were offered to the effect that the reputation of the witness for truth, honesty, and integrity was not good. While these were met by other depositions, the trial court might properly, we think, have wholly disbelieved the testimony quoted, and such a conclusion would be further supported by the consideration that the statement was quite possibly influenced by a desire to make it appear that there had been no negligence in handling the divorce action. In addition to these considerations, Brownell’s testimony itself not only tends to impeach the statement quoted, but contains admissions which positively support the contention of the respondents. Being presented with an affidavit in another divorce action brought by him at about the same time as the one in question which was defective in the same particular as the affidavit filed in the Pusey case, he stated: “Oh, I made a great many affidavits that way. I haven’t any doubt but what I did. I was practicing polities in those days more than anything else and was very careless in my business.” This statement could have been properly considered by the court as evidence that a second affidavit was not prepared,- or that, if it was prepared, it was not filed.

Finally, we have the testimony of the, defendant in the divorce action which, the appellants evidently regard as very da.-ma.ging to their case. And so in fact it is. Describing an interview with Pusey subsequent to the divorce, she states-: “Pie had- very little to say. I was trying to tell him all the time that he did know where I was all the time. I couldn’t hardly realize what this was all about. I remember so well I kept saying to Pusey, ‘You did know I was there, Henry. You used to write to me all the time.’ He didn’t answer me for a while, and finally he said, ‘Yes, I did know where you

were.’ ” If the court believed this testimony, as it might properly have done, it would follow that Pusey could only have executed a proper affidavit by committing perjury. We are not ready to hold that the court was bound to presume that he made a second affidavit if it had further to presume and say that in so doing he made a perjured affidavit.

[2] We are satisfied that the evidence,' considered as a whole, is sufficient to support the finding that no second affidavit was in fact filed.

[3] But it is contended on behalf of the appellants that the testimony of Julia Proctor, the defendant in the divorce action, was improperly received. The effect of the decision of the court was to hold that Julia Proctor was at all times the wife of the appellant, Henry F. Pusey. The appellants, however, were contending throughout the ease that the decree of divorce was valid and that from and after that decree Julia Proctor ceased to be the wife of the appellant Pusey. Under these circumstances, the appellants offered the objection that her testimony was incompetent, irrelevant, and immaterial. Under some circumstances this general objection might be considered sufficient to raise the point that the testimony sought to be adduced was privileged under that portion of section 1881 of the Code of Civil Procedure, which reads: “A husband cannot be examined for or against his wife without her consent; nor a wife for or against her husband, without his consent.” (Humphrey v. Pope, 1 Cal. App. 374, [82 Pac. 223].) In this case, however, there had been a decree of divorce the validity of which was the matter in dispute. After that decree, both parties to the marriage had attempted to contract marriage and had entered into the marriage relation with other parties. The appellants, who were seeking to establish the validity of the decree of divorce, cannot, then, well be allowed to claim that by their general objection they were seeking the benefit of a relation which they claimed did not in fact exist. To properly apprise the court of its nature the objection should, to say the least, have been made in definite and unequivocal language.

[4] It is true that Julia Proctor testified to communications between herself and her husband before as well as after the decree of divorce and that it is further provided in section 1881 of the Code of Civil Procedure that neither husband nor wife can, even after the termination of the marriage,

be examined, without the consent of the other, as to any communication made by one to the other during the marriage. It is to be noted, however, that the point sought to be shown by the communications here in question was the act of communicating and not the nature or character of the communications themselves, the purpose of the inquiry being to show that the appellant Pusey knew the whereabouts of his wife. These circumstances present a proper case for the application of the rule stated in 4 Wigmore on Evidence, section 2337: “The privilege has for its object the security from apprehension of disclosure, a security in consequence of which confidences will be freely given and not withheld. The protection therefore extends only to communications, i. e., utterances, not acts—the reasoning being analogous to that which establishes á similar limitation for communications between attorney and client ...” We think, therefore, that the purpose of the inquiry being to show the act of communicating and not the disclosures involved in the communications, the testimony does not come within the inhibition of the statute.

[5] Considering the contention that the attack upon the judgment is barred by laches or by the statute of limitations, we find that the appellants have cited no statute the effect of which would be to bar the attack upon the judgment in question. They do indeed cite Estudillo v. Security Loan etc. Co., 149 Cal. 556, [87 Pac. 19], but the language in that case is applicable only to actions in equity for relief on the ground of fraud. Since the judgment here in question is attacked not upon the ground that it is voidable for fraud but upon the ground that it is void for lack of jurisdiction, that case has no bearing upon the issue. Appellants cite numerous cases bearing on the doctrine of laches, but they have failed to show how that doctrine can apply to this ease. Nor can it, we think, be asserted that the respondents have in any way slept upon their rights.

[6] Were it not for the elaborate array of cases presented by the appellants, we should consider that any discussion of their fourth point was concluded by the statements in Forbes v. Hyde, 31 Cal. 342, 348: “A judgment absolutely void may be attacked anywhere, directly or collaterally whenever it presents itself, either by parties or strangers. It is simply a nullity, and can be neither' a basis nor evidence of any

right whatever. ’’ (See, also, Pioneer Land Co. v. Maddux, 109 Cal. 638, [50 Am. St. Rep. 67, 42 Pac. 295], and Adams v. Adams, 154 Mass. 290, [13 L. R. A. 275, 28 N. E. 260].)

[7] An examination of appellants’ cases, however, reveals the fact that, practically without exception, it was assumed or clearly shown that the defendant in the action wherein the judgment which was being attacked had been rendered had been regularly brought within the- jurisdiction of the court. It is indeed stated in 23 Cyc. 1068, that strangers to the record can attack a judgment only when rights accruing to them prior to its rendition are affected. We have examined all the cases cited to support this statement. In each case property rights had been the subject of adjudication and the rights of the party attacking the judgment had arisen with respect to the property in question after the judgment had been rendered. The judgment was in no case alleged to be void. Obviously, no rule based on these cases has any application to the case at bar. McLeod v. McLeod, 144 Ga. 359, [87 S. E. 286], appears at first glance to support the appellants, but we note that the court decided not that a stranger could not attack a void judgment, but that the judgment in question was not void. It remains only to consider the case of Harpold v. Doyle, 16 Idaho, 671, [102 Pac. 159]. We do find language in support of the appellants’ contention in the opinion of Sullivan, J. It appears, however,, to be dictum. It was dissented from by Stewart, J., and upon a rehearing of the case it was so qualified as to remove any support it may formerly have afforded to the argument of appellants. Under the circumstances of this case, the respondents are entitled to attack the judgment in the divorce action on the ground that it is void for lack of jurisdiction. They have, we think, been successful in this attack.

The order appealed from is affirmed.

Wilbur, J., and Melvin, J., concurred.