Carr's Adm'r v. Carr

92 Ky. 552 | Ky. Ct. App. | 1892

CHIEF JUSTICE HOLT

delivered the opinion op the court.

November 12,1888, J. M. Carr, living in Trigg county, sued Ms wife,' the appellee, Rhoda J. Carr, then living but two or three miles from him, but in the State of Tennessee, in the circuit court of his county for a divorce upon the ground of abandonment without cause.

Being a non-resident a warning order was made against her to appear at the next term of the court, beginning more than sixty days thereafter, to-wit: on February 11, 1889, and an attorney was appointed to defend for her. lie filed a report, and the evidence for the plaintiff having been taken the cause was submitted on February 19,1889, resulting in a judgment of absolute divorce to the husband. He died in July, 1889. Although the appellee knew of the pendency of the suit she remained silent until August 23, 1889, when she brought, this action against his administrator and heirs, claiming that the judgment of divorce was void and that she was therefore entitled to share in his estate as his widow. The lower court so held.

By our statute a divorce bars all claim to dower. (Gen. Stats., chap. 52, art. 4, sec. 14.)

If, however, the judgment was void it would not, of course, affect the marital - rights of the appellee. She claims that she was compelled to the abandonment by the cruel treatment of J. M. Carr; that she was not before the court upon even constructive notice, because the affidavit upon which the warning order was made was substantially defective and therefore the order of warning was void; and, if this be not true, yet that the judgment of divorce was prematurely rendered.

If the court granting the divorce had no jurisdiction, then, of course, its action is void. What facts constitute a want of jurisdiction is, however, often a troublesome question. .

The Civil Code, section 60, provides that the warning order and appointment of an attorney to defend is a constructive service.

Section 58 provides, however, that the clerk of the court shall not make the warning order except upon an affidavit of the plaintiff stating the non-residence of the defendant, and in what country he resides or may be found, and the name of the place wherein a post-office is kept nearest to the place where he resides or may be found; or stating the affiant’s ignorance of these matters so far as they are unknown to him.

The affidavit upon which the warning order was made stated that the appellee resided in Stewart county, Tennessee, and was then absent from this State, but the name of her post-office was left blank. Did this omission render the judgment void for want of jurisdiction?

An action against a non-resident upon construction service is of an ex parte nature. The right to it is based altogether upon the statute. It has, therefore, very properly been held by this court that in such a proceeding the statute must be so far strictly followed as to show a substantial compliance with it. A decree in such a cause may, however, be void or merely erroneous. If it be had without any warning order and the appointment of am attorney to defend for the non-resident it is of course void. There is then no constructive service.

The judgment now in question, however, is that of a ■court of general jurisdiction, rendered upon a warning ■order entered in proper form, and after the filing of the report of the attorney appointed to defend. A warning order under the present practice takes the place of an order of publication under the old mode of procedure.

An act of our Legislature of 1815 authorized proceedings against unknown heirs, but provided that before an order of publication should be made the complainant should file in the clerk’s office with his bill an affidavit stating that the names of the heirs were unknown to him.

In Hynes v. Oldham, 3 Mon., 266, it was held, however, that the failure to do so rendered the decree merely erroneous and not void.

This case was followed in the subsequent one of Benningfield, &c., v. Reed, &c., 8 B. M., 102, and both are cited with- approval in Newcomb’s Executors, &c., v. Newcomb, 13 Bush, 544. In analogy to these cases we think the failure' to give the name of the post-office in the affidavit did not render the decree void, nor was it a nullity ■even if the action was prematurely heard.

The appellee, after the death of her former husband, brings her suit to recover a widow’s part of his estate. :She avers that while she abandoned him, yet she was forced to do so by his cruel treatment of her. Issue is joined as to it, and the evidence being taken and case fully prepared it is perfectly manifest the decree in .the divorce suit was correct. She fails altogether to show a,ny ill-treatment of her by the husband. It follows that if she had appeared and made defense to the divorce suit her husband would have been entitled to the decree. The result would not have been changed. Not only therefore does it appear that she knew of the pendency of the suit, but that if she had defended it the result would have been the same. The equity of the case is against her, and now, upon a rehearing of the matter involved in the former suit, and in -which she claims she was prejudiced by want of proper notice of its pendency, it appears nothing more was therein granted to the complainant than he was entitled to in equity and good conscience.

Under these circumstances the judgment of divorce should not be re-opened and vacated' upon petition as erroneous even if this be allowable in such a 'character of action. Its correctness has again had full and fair investigation ; the appellee has had her day in court, and it now appears to have been a proper judgment.

It follows that the appellee has no right in .the estate of her former husband, and the judgment is reversed with directions to dismiss her petition.