Clayton v. Clayton

| Colo. | Dec 15, 1878

Elbert, J.

Under the provisions of section 15 of the Chancery Act (R. S., p. 95), a decree rendered upon constructive service is provisional only. Although final in form, it is not so in fact, but is subject, upon petition of the defendant within the three years, to be modified or vacated, upon a hearing upon the merits. At the expiration of the three years, there being no interposition by the defendant, it is confirmed to the extent that any defense on the merits is precluded. Lyons et al. v. Robbins, 46 Ill. 277; Southern Bank, etc. v. Humphrey, 47 id. 227; Sale v. Fike, 54 id. 292; Lawrence v. Lawrence, 73 id. 577.

The section has in contemplation cases where there has been constructive service only, not cases of defective constructive service. . It affects the status of the decree as a final decree — not its status as a valid decree. In this view the section has no’bearing upon the question of the admissibility in evidence of the record in the divorce suit instituted by James W. Clayton against the appellee.

. Under the rulings in the case of Palmer v. Cowdrey, 2 Col. 1, and Vance's Heirs v. Maroney (ante, p. 47), the return of the summons in the divorce case before the return day would have been fatal on review by an appellate tribunal. It was there held that a return non inventus before the return day of the writ would not support a notice by publication, and left the court without authority to proceed to judgment. Without questioning the rulings in these cases, counsel for appellant insist that the record cannot be attacked collaterally.

It is well settled that the jurisdiction of a court may be the subject of inquiry when its record is sought to be interposed by a party claiming a benefit therefrom. Williamson v. Berry, 8 How. 541.*

Where, by statute, constructive service by publication i& substituted for personal service, and a court proceeds against an absent defendant, not a citizen of the State, the provisions of the statute must be strictly pursued. The rule is essential to the protection of parties without the jurisdiction of the court.

Whether under such a statute the record must show affirmatively the jurisdictional facts, or whether in the silence of the.record any presumption can be indulged to support the judgment of a court of general jurisdiction, we need not determine. Clearly, where the record shows affirmatively, want of jurisdiction, no presumption can be indulged. Galpin v. Page, 18 Wall. 365 ; S. C., 3 Saw. C. C. R. 117.

The invalidity of the record offered in evidence in the case at bar was self-established. It shows affirmatively the non-residence of the defendant, and the return of the summons non inventus, on the same day it was issued. In such case the publication of notice was insufficient under the statute to vest the court with authority to proceed to hear and determine the cause, and it was competent for the defendant to object that the provisions of the law under which a decree had been entered against her had not been pursued, and that the court rehdering the decree had no jurisdiction. The record offered was properly rejected.

That hardship may result to parties, acting in good faith •upon such, a decree cannot avail against the greater hardship of concluding parties by adjudications of their most sacred rights in proceedings of which they have no actual notice, and to which they have never appeared.

The evidence that James W. Clayton lived with the plaintiff and recognized her as his wife, was admissible to establish that relation. Marriage may be proven in civil cases, other than actions for seduction, by reputation, declarations, and conduct of the parties, and other circumstances usually accompanying that relation. 2 Greenl. Ev., §§ 461, 462, and cases there cited.

For the purpose of showing the marriage of the plaintiff with James W. Clayton, the report of the master in the divorce suit containing the written examination of James W. Clayton under oath was offered in evidence by the plaintiff and admitted by the court.

Had the defendant objected to the master’s report as being no part of a valid record, it would have been incumbent on the plaintiff to have shown that it was taken in a depending cause, regularly before the court, and within its jurisdiction. 2 Phillips’ Ev. 219.* This would have resulted in ■ the view which the court below took of the proceedings in the divorce case, in the exclusion of the master’s report as a record, although it would have been admissible as a voluntary affidavit of James W. Clayton, containing an admission or statement respecting his marriage with the plaintiff. 1 Greenl. Ev., § 516; 2 Phillips’ Ev. 211.* But no objection was urged challenging its character as a record; on the other hand, the entire defense proceeded upon the theory that the proceedings in the divorce suit were valid. The first objection to the report was “because it shows it is the testimony of James W. Clayton, and his statements cannot bind these defendants.” This objection was properly overruled, as all the parties claimed through James W. Clayton, and stood in the relation of privies to him. Nor was the second objection tenable.

Its character as a record being admitted, there was no rule that required the plaintiff to introduce the entire record in order to avail himself of a part of it.

There was no error, therefore, in admitting the master’s report over the objections urged against it, and we are not called upon to consider objections not urged in the court below.

The foregoing are the principal assignments urged by the appellants, and all that we deem it necessary to consider.

Judgment affirmed: