201 S.W.2d 755 | Ark. | 1947
November 4, 1935, Hugh Isbell, appellee's husband, by appropriate proceedings, was declared mentally incompetent, and a guardian duly appointed. Shelby E. Floyd is the guardian in succession.
August 28, 1945, appellee, Fay Isbell, sued her husband for divorce. The grounds alleged were cruel treatment, or indignities, 4381, Pope's Digest, 5th subdivision. Summons was served on the guardian of Hugh Isbell, Shelby E. Floyd, September 19, 1945. September 7, 1945, Hugh Isbell executed a waiver of service and entry of appearance. A decree of divorce was granted Fay Isbell January 16, 1946, and certain orders were made relative to property rights and the custody of a minor child.
On April 6, 1946, the present suit was filed by Lee Wells, as next friend of Hugh Isbell, to vacate and set aside the divorce decree, supra, of January 16, 1946, on the ground, among others, that no process was ever served on him (Hugh Isbell) in the divorce action and that the trial court was without jurisdiction to render the decree of divorce against him. When the cause came on for trial the name of appellant, guardian, was substituted for that of Lee Wells as next friend.
From a decree denying appellant's prayer to vacate the divorce decree, this appeal is prosecuted. *633
Appellant earnestly insists that the trial court was without jurisdiction to render the divorce decree of January 16, 1946, for the reason that no process was ever served on Hugh Isbell. We think appellant's contention must be sustained.
It is undisputed that Hugh Isbell was declared mentally incompetent November 4, 1935, and was under guardianship at the time the divorce suit, supra, was filed in August, 1945, and the decree rendered January 16, 1946. It is also undisputed that no process was ever served on Hugh Isbell in the divorce action, supra. He did, however, execute a waiver and entry of appearance.
Section 1371 of Pope's Digest provides in part: "Where the defendant is a person judicially found to be of unsound mind, the service must be upon him and upon his guardian; etc." This provision of the statute is mandatory that service "must" be both upon Hugh Isbell and his guardian. We so held in the recent case of Wilder v. Wilder,
In 28 Amer. Jur., p. 743, 112, the general rule is announced as follows: "Where the insane person has been so adjudicated, and a guardian appointed for him, it is generally provided that service is to be made on both the committee or guardian and the incompetent."
In this case, Hugh Isbell could neither acknowledge nor waive service of process upon him.
This was the effect of the holding of this court in Moore v. Wilson,
Appellee's petition for reasonable attorney's fee and suit money is denied for the reason that the present action is not the kind of action contemplated under 4388, Pope's Digest, as amended by Act 25 of the General Assembly of 1941, p. 54, which reads as follows: "During the pendency of an action for divorce or alimony, or during the pendency of an action involving the care and/or maintenance of the children, the court may allow the wife maintenance for herself and/or children, as the case may be, and a reasonable fee for her attorneys, and enforce the payment of the same by orders and execution and proceedings as in cases of contempt."
The present suit is not one for divorce, alimony or one involving the care or maintenance of children, but is an action to vacate a divorce decree, and is not governed by the quoted section of the statute.
Accordingly, the decree is reversed and the cause remanded with directions to vacate the divorce decree of January 16, 1946, and for further proceedings consistent with this opinion. *635