191 S.W.2d 946 | Tenn. Ct. App. | 1945
This is a divorce action instituted by the appellant, Daniel McFerrin, in the circuit court of Fayette County, Tennessee. The defendant, Martha Jane Walker McFerrin, filed an answer and the issues thus made were tried before the circuit judge without a jury. He dismissed the petition for lack of jurisdiction and the petitioner appealed.
The grounds for divorce set up in the petition are cruel and inhuman treatment, adultery, and willful or malicious desertion or absence without a reasonable cause for two whole years and more.
The evidence was not preserved by a bill of exceptions and the case is before us upon the technical record, including a finding of fact incorporated in the final decree. *554 The judge found and decreed that
". . . as charged in the original bill for divorce, the marital domicile of the parties at the time of their separation on or about January 15, 1929, was in Fayette County, Tennessee. The Court further finds as a fact that the complainant is a non-resident of the State of Tennessee and that personal process was served upon the defendant, she being at the time of said service found in said Fayette County, Tennessee.
"The Court also finds and decrees that the defendant is guilty of such cruel and inhuman treatment or conduct towards the complainant as renders cohabitation unsafe and improper; that as charged in the original bill, she has committed adultery; and that she is guilty of wilful or malicious desertion or absence, without a reasonable cause, for two whole years and more. However, although these grounds were established by the proof, the court is of the opinion that it is without jurisdiction in this cause, the complainant being a non-resident, he being at the time of the trial and at the time of the filing of the bill a resident and citizen of the State of Illinois, serving in the United States Army overseas, and has not been a citizen or resident of the State of Tennessee for sixteen years, being a resident and citizen of the State of Illinois for such period, he was inducted into the army from said State of Illinois, and registered there under the Selective Service Act.
"From all of which facts and circumstances it appeared to the Court that the complainant cannot maintain an action for divorce in this State; that this Court has no jurisdiction to hear and determine said cause of action, and that same should be dismissed."
We think the view taken by the circuit judge was erroneous. It is only where the acts complained of *555
were committed out of the State that two years residence next preceding the filing of the bill specified in Code, Section 8428 is required. Carter v. Carter,
In construing this section, the court held in Brown v. Brown,
If this were all, we would be constrained to grant the divorce, but this cannot be done because there is a fatal defect in the verification of the petition.
This is in the following form and language:
"_______________ | _______________ |
*556Complainant, Daniel McFerrin, being duly sworn makes oath that the facts stated in the foregoing Bill are true to the best of his knowledge and belief and that the complaint is not made out of levity, or by collusion with the defendant, but in sincerity and truth, for the causes mentioned in the bill.
Daniel McFerrin
Subscribed and sworn to before me this 24 day of October, 1944.
(Seal) D V Guple _____________________________ Chief Presy Magistrate. 24 Oct. 1944
Chief Presidency Magistrate Calcutta"
Code, Section 8431 provides that a bill or petition for divorce shall be verified by a certificate, upon oath or affirmation before a justice of the peace, notary public, or judge or clerk of the court. Construing this section, we said in the recent case of Carter v. Carter, Tenn. App.,
In that case the question was whether the required oath could be administered by the notary public of another state. We held that a verification made before such an official was valid by virtue of Code, Section 10412 *557 relating to bills in chancery. That ruling is invoked by the petitioner in the present case in support of her contention with respect to the validity of the oath to her petition. Code, Section 10412 is in the following language: "They (bills in chancery) may be sworn to out of the state, before a notary public, or a commissioner for this state, whose attestation shall be accompanied by his seal of office, or before a judge or justice of the peace of the state, whose official character shall be attested by the clerk of the court in which the judge presides, or by clerk of the county court in the case of a justice of the peace."
The rationale of the conclusion reached in the Carter case is that a bill for divorce is a bill in chancery within the meaning of this section and that by virtue of Code, Section 8802 the same is true with respect to a petition for divorce filed in the circuit court.
But Code, Section 10412 does not authorize the oath to the petition in this case. In the first place, we think that section authorizes a verification before the designated officials of other states of the United States only. It does not authorize an oath before an official of a foreign country even though he purport to hold one of the specified positions.
In the second place, if it were otherwise, the verification in this case would be fatally defective in that the official character of the "Chief Presy Magistrate" who purports to have administered the oath was not attested by the clerk of the court in which that official presided or by any one else. We think that in any view of the case this was essential. An analogy is to be found in the holding of the court in the case of Hunt v. Curry,
A similar result has been reached with respect to the authentication of judicial procedings and other official records in the manner provided by the acts of Congress compiled in 28 U.S.C.A. secs. 687 and 688. The cases will be found in the notes under these sections.
It is proper to say that both parties were represented by counsel in the trial in the circuit court where the question with respect to the sufficiency of the verification was duly and seasonably made. However, no one appeared for the appellee in this court, the case having been presented only by counsel for the appellant, who nevertheless very properly called attention to the question. Moreover, since the question is one that goes to the jurisdiction of the subject matter it would be not only the right but the positive duty of the court to raise it of its own motion, if it had not otherwise been noticed. DeArmond v. DeArmond,
The result is that we are obliged to affirm the decree dismissing the petition.
Ketchum and Baptish, JJ., concur. *559