Gardner v. Gardner, No. 2125

No. 2125 | D.C. | Mar 31, 1958

QUINN, Associate Judge.

This is an appeal from a final judgment dismissing appellant’s uncontested suit for absolute divorce on the ground of desertion. Appellant testified the parties were married in October 1945; that in September 1948 they took up residence in New York City and in December of that year appellee left her, and that she has not seen or heard from him since. She further testified that in the fall of 1954 she met appellee’s sister, whose married name and address she did not know, on the street, inquired of his whereabouts and was informed that appellee was in Macon, Georgia. The record is silent as to appellant’s endeavor to ascertain any further information concerning her husband’s address, place of employment, etc. Suit was filed in December 1956 and thereafter publication was had in accordance with the procedure set forth in the Code.¹ A copy of the order of publication was sent to appellee at Macon, Georgia, no street address was given, and the letter was returned unclaimed.

Code Section 13-111 provides:

“ * * * no order or decree shall be passed against said absent or nonresident defendant upon proof of notice by such publication unless the complainant, plaintiff, his agent, or solicitor, or attorney shall file in the cause an affidavit showing that at least twenty days before applying for such order or decree he mailed, postpaid, a copy of said advertisement, directed to the party therein ordered to appear, at his last known place of residence, or that he has been unable to ascertain the last place of residence of said party after diligent effort to ascertain the same. * * * ”

The only question to determine on- this appeal is whether the court was correct in dismissing the suit for failure on the part of appellant to make a diligent effort to ascertain appellee’s exact address, if he did in fact reside in Macon, Georgia. There is no doubt in our minds as to the correctness of the court’s action. Here, appellant, six years after her husband’s alleged desertion, met her sister-in-law on the street, and upon learning that he was living in Macon, Georgia, made no effort to obtain his precise address. Two years later, she filed suit and sent a copy of the notice of publication to appellee simply addressed “Macon, Georgia.” The words “diligent effort” in the Code provision mean exactly what they say, and on the basis of the record before us, we conclude that the statute was not sufficiently complied with.

Affirmed.

1 . Code 1951, §§ 13-108, 13-109, and 13-111.