52 A.2d 310 | Conn. | 1947
This action for divorce was brought on two grounds: desertion, and seven years' absence, during all of which period the absent party had not been heard from. General Statutes 5174. The writ described the defendant as "formerly of the City of Shelton . . . Connecticut, and now of parts unknown," and the plaintiff as a resident of Shelton. The complaint alleged that the parties were married in 1902 in Westfield, Massachusetts; that the plaintiff has resided in this state three years next before the date of the complaint; that the desertion occurred on November 3, 1910; and that on that date the defendant departed from Shelton and has been absent from the plaintiff and from this state ever since and for more than seven years has not been heard from by the plaintiff or any other person to his knowledge.
Service of the writ and complaint was made in the following manner. The clerk of the court to which the action was made returnable found that the defendant was absent from this state and had gone to parts unknown and ordered that notice of the pendency of the complaint be given by publishing the order of notice three times in a specified newspaper published in Ansonia, Connecticut, a town adjacent to Shelton. The order was published as directed. Thereafter the plaintiff applied for a further order *458 of notice. The court before which the case was pending found that the defendant was absent from the state and had gone to parts unknown and that notice of the pendency of the action had been given as required by the order of notice previously issued, and ordered further publication in the Ansonia newspaper. The order was complied with and thereafter the case came to trial and the plaintiff was heard. No appearance in the defendant's behalf had been entered, and she was not personally present, nor was she represented by counsel. The court did not decide the case on its merits but found that the writ and complaint were not duly served on the defendant and that due notice of the pendency of the action was not given to her, and entered judgment erasing the case from the docket. The plaintiff has appealed.
The only perfect notice of the pendency of a divorce action is actual service upon the defendant. This is frequently impossible, for often, as in the present case, the adverse party has gone to parts unknown. It follows that in such circumstances some form of substituted or constructive service is required. Section 5177 of the General Statutes provides as follows: "On a complaint for divorce when the adverse party shall reside out of or be absent from the state or the whereabouts of the adverse party shall be unknown to the plaintiff, any judge or clerk of the supreme court of errors or of the superior court or any county commissioner may make such order of notice as he may deem reasonable; and, such notice having been given and duly proved to the court, it may hear such complaint if it shall find that the defendant has actually received notice that the complaint is pending, and, if it shall *459 not appear that the defendant has had such notice, the court may hear such case, or, if it shall see cause, order such further notice to be given as it may deem reasonable and continue the complaint until the order shall be complied with."
The basis of the trial court's decision was that our courts do not have jurisdiction to grant a divorce in the absence of actual notice to the defendant unless there is a probability that he would have learned of the pendency of the proceeding through the notice ordered. The effect of the ruling would be to prevent the court from granting divorces where the defendant had gone to parts unknown leaving no discoverable ties through which information would be likely to be passed on to him. The rule that the court applied was that which governs the extra-territorial effect of judgments against an absent resident, where the adequacy of constructive notice "is dependent on whether or not the form of substituted service provided for such cases and employed is reasonably calculated to give him actual notice of the proceedings and an opportunity to be heard." Milliken v. Meyer,
In Pennoyer v. Neff,
In Blackinton v. Blackinton,
As has been noted, in Starr v. Pease, supra, it was held that our legislature had the power to grant divorces, and under Maynard v. Hill, supra, it might do that without any notice, actual or constructive, to the defendant. Having that power, it could vest in the courts jurisdiction to grant divorces on such terms as it saw fit. In doing that, instead of specifying, where personal service cannot be made, that a particular form of notice shall be given, it has left it in the first instance to a judge, a clerk of court or a *462
county commissioner to order such notice "as he may deem reasonable" and has provided that, when such notice has been given, the court may either hear the case or order such further notice "as it may deem reasonable." Jurisdiction to grant a divorce "is founded on domicil." Williams v. North Carolina,
The requirement of notice in the statute contemplates one which will be most likely to reach the defendant; no doubt the discretion vested in the judge, clerk or county commissioner or in the court might be abused; and if at the final hearing the trial court should conclude that some other method would be more effective to accomplish the purpose of the requirement it might, as provided in the statute, order such further notice to be given as it deemed reasonable and continue the complaint until the order was complied with. Even where a defendant has gone to parts unknown, very likely outside the State, it may well be that publication in the place of the former marital residence is the form of notice most apt to bring the pendency of the action to his attention, because of the likelihood that there will be relatives or friends there who have means of communicating information to him directly or indirectly. The trial court was in error in striking the case from the docket on the ground that it was without jurisdiction to try the case.
There is error, the judgment is set aside, and the