About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

70 Yale L.J. 45 (1960-1961)
Estoppel against Jurisdictional Attack on Decrees of Divorce

handle is hein.journals/ylr70 and id is 55 raw text is: ESTOPPEL AGAINST JURISDICTIONAL ATTACK ON DECREES OF DIVORCE HOMER LARKt As a general principle a court's judgment given without jurisdiction over the subject matter of the action is void and open to collateral attack,' either by the parties to the original suit 2 or by others whose interests may have been affected thereby.3 This principle governs divorce decrees as well as other kinds of decrees and judgments,4 perhaps with even greater force because of the state's often mentioned interest in divorces. Yet there has long been another conflicting principle, that one who obtains a judgment cannot later collaterally attack it upon jurisdictional grounds.5 This principle also has long been applied to divorce decrees,6 (though not without some disagreement), and recently has been rather broadly extended.7 This second principle is commonly referred tProfessor of Law, University of Colorado, School of Law. 1. RESTATEMENT, JUDGMENTS §§ 5, 7, 11 (1942) ; 1 FREEMAN, JUDGMENTS §§ 333, 337 (5th ed. 1925); Note, Developments in the Law of Res Judicata, 65 HaRv. L. REv. 818, 851, 853 (1952) ; see Baltimore Mail S.S. Co. v. Fawcett, 269 N.Y. 379, 390, 199 N.E. 628, 633, cert. denied, 298 U.S. 675 (1936). The principle is limited today by res judicata. See Bosky & Braucher, Jurisdiction and Collateral Attack, 40 COLUM. L. REv. 1006 (1940) ; RESTATEMENT, JUDGMENTS § 10 (1942). It may also be limited by the requirement that the lack of jurisdiction must appear on the face of the record. 1 FREEMAN, op. cit. supra § 333. 2. 1 id. § 317. 3. 1 id. § 318. 4. Jacobs, Attack on Decrees of Divorce, 34 MIcH. L. REv. 749 (1936), reprinted in ASSOCIATION OF AMERICAN LAW ScaooLs, SELECTED ESSAYS ON FAMILY LAw 987 (1950) ; Note, Stranger Attack on Sister-State Decrees of Divorce, 24 U. CHI. L. REv. 376 (1957). For an example of the rigid treatment of jurisdiction, see People v. Dawell, 25 Mich. 247 (1872) (Cooley, J.). 5. Relatively few early cases outside the divorce field have been found to support this proposition. A clear statement of it is found in 3 STORY, EQUITY JURISPRUDENCE 581 (14th ed. 1918), and 1 FREEMAN, op. cit. supra note 1, § 320. Cases which do support it are Three States Lumber Co. v. Blanks, 133 Fed. 479 (6th Cir. 1904); Consolidated Home Supply Ditch & Reservoir Co. v. New Loveland & Greeley Irr. & Land Co., 27 Colo. 521, 62 Pac. 364 (1900) ; Ray v. McLain, 106 La. 780, 31 So. 315 (1901) ; Hewitt v. Northrup, 75 N.Y. 506, 510 (1878). 6. E.g., Palmer v. Palmer, 1 Sw. & Tr. 551, 164 Eng. Rep. 855 (Ct. for Div. and Matrim. Causes 1859); Ellis v. White, 61 Iowa 644, 17 N.W. 28 (1883). Cases contra often turned on the argument that the application of estoppel would in effect allow spouses to confer jurisdiction and obtain divorces by consent alone. See Smith v. Smith, 79 Mass. (13 Gray) 209 (1859). Other cases on this point are collected in the following annotations: 60 L.R.A. 294, 301 (1902) ; 51 L.R.A. 534 (1914) ; 109 A.L.R. 1018, 1019 (1937); 122 A.L.R. 1321, 1323 (1939) ; 140 A.L.R. 914, 915 (1942) ; 152 A.L.R. 941, 943 (1944) ; 175 A.L.R. 538, 539 (1948). 7. The extension is nicely illustrated by the successive changes in the Restatement of the Conflict of Laws. The original Restatement, § 112, in 1934 stated that the validity

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most