43 Kan. 338 | Kan. | 1890
The opinion of the court was delivered by
This was an action brought in the district court of Shawnee county, by Sarah Ann Knoyle against J. B. Larimer and others, to set aside a certain will of Jeremiah Knoyle, deceased, and to have the estate purporting to be disposed of by the will declared to belong to the plaintiff, who, she alleges, is the widow and sole surviving heir of the deceased; but the question finally decided by the court below, and the one brought to this court, is, whether a certain decree of divorce purporting to divorce the aforesaid Jeremiah Knoyle from the aforesaid Sarah Ann Knoyle is void or not for want of jurisdiction in the court rendering it, or for fraud on the part of Knoyle in procuring it. A full set of pleadings was filed in the case, a petition, an answer, a reply and a demurrer by the defendants, to the second paragraph of the reply. The demurrer was overruled by the court below, and the defendants, as plaintiffs in error, bring the case to this court for the purpose of having such ruling reviewed and reversed.
The facts of the case, admitted by the pleadings, appear to be substantially as follows: On October 16, 1860, the aforesaid Jeremiah Knoyle and Sarah Ann Knoyle were married. She at the time had about $>2,000 in money and personal property, which he obtained from her and used. They lived
“2. And for a further and additional reply to said answer, the plaintiff says: That when she, the said plaintiff, was married to said Jeremiah Knoyle, now deceased, she owned in her own right a large amount of money and personal property, aggregating in value about $2,000, and she at that time gave it into the possession of said Jeremiah Knoyle, and that he invested the same in real estate in his own name and used the same as his own money, and never refunded any portion of it to plaintiff, or in any manner paid it or any part of it to her; and that she continued to live with him for a period of about 24 years as his wife, and toiled and drudged for him, and by her work and economy and toil assisted him to accumulate all the property of which he died possessed; that during the entire period of her married life she continued to be a loyal, devoted, and obedient wife to said Jeremiah Knoyle; that sometime in 1878, and when she was far advanced in*342 years, the-said Jeremiah Knoyle, by the careless and reckless driving of a team, injured her, the plaintiff, so severely that she became a cripple for life; that when he realized she was so hopelessly crippled that she could toil and drudge for him no more, he cruelly determined to rid himself of her, to get divorced from her, and without her knowledge and consent; and sometime prior to February 24, 1884, he, said Jeremiah Knoyle, sent the plaintiff away to visit her relatives, with the understanding that she was to visit and rest with her relatives in the states of Wisconsin, Michigan,and Pennsylvania; that while she. was away on said visit he knew all the time and every day where she was, and was continually corresponding with her and her relatives with whom she was visiting, during all of said time. And while she was so visiting, he, said Jeremiah Knoyle, gave her the $1,700 mentioned in the exhibit attached to plaintiff’s answer, and by representing to her that said writing was only a receipt, induced her to sign the said paper copied in said answer, and she, relying upon his representations and good faith, and believing that it was intended only as a receipt for that money, signed said paper. And afterward the said Jeremiah Knoyle, fraudulently designing to obtain a divorce from said plaintiff, and without her knowledge and consent, did, on the 26th day of February, 1885, file a false petition against her for a divorce, falsely charging her with abandoning him, in the office of the clerk of the district court of Pottawatomie county, Kansas. And the plaintiff says the said charge of abandonment was wholly false; that he never made or caused to be made any legal service of summons, either personal or constructive, or by publication or otherwise, in said cause. He caused a notice of said divorce proceedings to be published in the Kansas Reporter, a newspaper published in the city of Wamego, in said Pottawatomie county, but he, said Jeremiah Knoyle, notwithstanding he well knew all the time where said Sarah Ann Knoyle was, and what her postoffice address was, never sent her any notice of said divorce, and never at any time inclosed a copy of his said petition for divorce with a copy of said publication notice attached thereto, in an envelope addressed to said Sarah Ann Knoyle at her place of residence, postage prepaid, or otherwise, and never deposited the same in the nearest postoffice or in any postoffice, and never sent the same, and never attempted to send it to the said Sarah Ann Knoyle, but he, said Jeremiah Knoyle, falsely, fraudulently, and wrongfully, did, on the 28th day of February, 1885, make*343 and file an affidavit in said district court of Pottawatomie county, stating in substance that the residence of the said Sarah Ann Knoyle was then unknown to him, and the same could not be ascertained by any means within his control; and the plaintiff avers that said Jeremiah Knoyle well knew where her place of residence was on the said 28 th day of February, 1885. A complete transcript of the records of the court in said pretended divorce proceedings is hereto attached and made a part of this reply, marked ‘ Exhibit A.’ And plaintiff says that there was no other service, or pretended or attempted service of summons, either personally, constructively, or otherwise, except as hereinbefore stated, in said pretended divorce proceedings; and the plaintiff never waived any service of summons in said case, and never in any manner entered her appearance therein; and that the said pretended service of summons was null and void; that the said pretended judgment of said Pottawatomie county district court in said pretended divorce case was wholly void; that said district court never obtained and never had jurisdiction in said pretended action of divorce, and that all said proceedings in said pretended action were null and void.”
Larimer filed a demurrer to this second paragraph of the plaintiff’s reply, upon the following grounds, to wit:
“1. The second ground of reply contained in plaintiff’s reply to the separate answer of the defendant is not sufficient in law.
“2. The second ground of reply contained in plaintiff’s reply to the defense set forth and contained in the separate answer of defendant, is upon its face insufficient in law.
“ 3. It appears upon the face of the reply that the facts set forth in the second ground of said reply to the defense set forth and contained in the separate answer to the defendant, J. B. Larimer, are insufficient in law to constitute a traverse or avoidance of said defense.”
The court below overruled this demurrer, and the defendants, as plaintiffs in error, bring thg case to this court for review. Since this case was brought to this court Sarah Ann Knoyle died, and on July 3,1889, the case was revived against James M. Foster as executor of her last will and testament, and the case is now prosecuted as against him.
It would seem from the pleadings of the parties as they
It is well settled in this state that a judgment rendered without jurisdiction is void, absolutely and entirely, and may be shown to be void in a collateral as well as in a direct proceeding, and by extrinsic evidence as well as by the record itself, and a judgment rendered against a party who has not been served in any manner with summons or notice, and who has not made any appearance in the case, is a judgment rendered without jurisdiction. (Mastin v. Gray, 19 Kas. 458; Litowich v. Litowich, 19 id. 451; Amsbaugh v. Exchange Bank, 33 id.
I. No summons was issued by the clerk of the court in the divorce case. This question has already been disposed of by this court in the case of Bannister v. Carroll, ante, p. 64; same case, 22 Pac. Rep. 1012. It is true that no summons was issued in the divorce case, but where service of summons is made by publication it is not necessary that an ordinary summons should be issued. See case above cited.
II. In a divorce case where service of summons is procured by publication it is necessary also that a copy of the petition, with a copy of the publication notice attached thereto, should be sent to the defendant within three days after the date of the first publication, “unless the plaintiff shall make and file an affidavit that such residence is unknown to the plaintiff and cannot be ascertained by any means within the control of the plaintiff.” The plaintiff in the divorce case did not send any copy of the petition or of the publication notice to the defendant, but in lieu thereof filed an affidavit which seems to be sufficient on its face, but it was not filed within three days after the first publication was made, but was filed on the fourth day thereafter, and for that reason it is claimed that the service by publication was and is void. Now the statute does not require that the affidavit should be filed within three
III. The aforesaid affidavit was sworn to in Pottawatomie county before “S. Fee, J. P.,” and there is nothing further to show who “S. Fee, J. P.,” was; and for that reason it is claimed that the affidavit was void, and therefore that the service was void. We shall presume, however, that “S. Fee, J. P.,” was a man by the name of S. Fee, who was a justice of the peace of Pottawatomie county; that the letter “S.” represented his first name; that “Fee” was his surname, and that the letters “J. P.” represented the words “Justice of the Peace.” And therefore we shall presume that the affidavit was regular and valid.
IV. It is also claimed that the petition in the divorce case, though verified by the oath of the plaintiff, also the affidavit for service of summons by publication, and also the affidavit filed in lieu of sending a copy of the petition and publication notice to the defendant, were all false and fraudulent, and that the plaintiff in the divorce case had full knowledge of their falsity and untruthfulness. And therefore it is further claimed that the judgment rendered in the divorce case was rendered without jurisdiction, and is void; and the case of Mastin v. Gray, supra, and cases like it, are cited as authority. On the other hand, it is claimed that although the petition and the two affidavits may be false and fraudulent, still that such things do not render the judgment void, but at most only voidable, and that the judgment cannot be attacked in this proceeding but only in a direct proceeding instituted for that purpose; and the case of Ogden v. Walters, supra, and other cases of like import, are cited as authority. Now we do not think that there is any conflict between these two classes of
We shall pass over the claim that the judgment in the divorce case is void for the reason that the allegations of the plaintiff’s petition in that case were untrue and false, for we do not think that it has ever been held by any court that a
In the case of Ogden v. Walters, supra, it was held that the affidavit for service by publication could not be contradicted in a collateral proceeding for the purpose of avoiding the judgment. That case, however, does not quite cover all the elements of service contemplated by the statute in a case like the present. That case was an action in the nature of ejectment; this is an action for divorce. In that ease, if the defendant was a non-resident, and if service of summons in the ordinary mode could not be made upon him in this state, then the affidavit for service of summons by publication in a newspaper, and such service without anything further, was all that was necessary in the way of service, to give the court jurisdiction; but in this ease, which is an action for divorce, something more is necessary. (See Civil Code, §641.) In addition to the affidavit for service by publication and the publication itself, it is also necessary either to send to the defendant a copy of the petition with a copy of the publication notice, or else to make and file an affidavit that the residence of the defendant is unknown, and that the plaintiff cannot ascertain the defendant’s residence by any means within the plaintiff’s control. The sending of the copy of the petition and the publication notice to the defendant, when that is done, is, according to the decision of this court in the case of Lewis v. Lewis, 15 Kas. 181, a part of the service. But the filing of the affidavit in lieu of sending a copy of the petition and publication notice to the defendant, when that is done, is no part of the service. (Hemphill v. Hemphill, 38 Kas. 220, 222.) The service in such a case is only by publication. We would therefore think the principles enunciated in the case of Ogden v. Walters, supra, must govern in the decision of this
“A divorce granted by the court of the domicile of both parties is valid everywhere under the constitution of the United States, and under the principles of international law, although the defendant has neither been summoned nor voluntarily appeared, provided that the laws of the parties’ domicile as to notice by publication or otherwise have been complied with.” (5 Am. & Eng. Encyc. of Law, 759, and cases there cited.)
“Want of jurisdiction in the court passing it is the only cause which renders a decree of divorce absolutely void; fraud does not, nor does irregularity.” (5 Am. & Eng. Encyc. of Law, 843, and cases there cited.)
See also, in this connection, Simpson v. Kimberlin, 12 Kas. 580; and as to collateral attacks upon judicial proceedings, see Head v. Daniels, 38 Kas. 2, 12, 13, and cases there cited.
Y. But treating the judgment in the divorce case as not void, but at most as ouly voidable, then may it be set aside or vacated in this action because of the fraud perpetrated by the plaintiff in the divorce action in procuring his decree of divorce? Under the facts of this case as alleged by Mrs. Knoyle in her pleadings, we would think not. Treating the divorce judgment as not void, but only as voidable, then it devolved upon Mrs. Knoyle to set forth facts sufficient in her pleadings to show that the judgment should be set asidé or vacated. This we think she did not do. She did not state that she did not have actual knowledge of the divorce proceedings while they were pending in the district court of Pottawatomie county. This we think is fatal to her present case. "Where a fraud is about to be perpetrated upon an individual by obtaining a wrongful judgment against him, and the court in which the judgment is sought has jurisdiction to hear and determine the matter, such individual cannot lie still and permit the fraud to be perpetrated upon him, and afterward complain. He must use reasonable diligence to prevent the fraud from being perpetrated upon him. This is indicated to a large
The judgment of the district court will be reversed, and the cause remanded for further proceedings.