64 N.E.2d 806 | Ind. Ct. App. | 1946
This case was erroneously appealed to the Supreme Court and by that court transferred here by virtue of § 4-217, Burns' 1933. It is an action for divorce instituted by the appellee through a complaint alleging cruel and inhuman treatment. Summons was issued but never served. The appellant, nevertheless, appeared generally and filed an application for suit and support money. This application was heard by the court and a temporary allowance made after which the appellant filed a cross-complaint in which she also prayed an absolute divorce. Upon trial of the cause the court rejected the appellant's case as set out in her cross-complaint and judgment went for the appellee on his complaint. In its decree the court quieted title in the appellee to certain real estate theretofore held by the parties as tenants by entireties and appointed a commissioner to convey the appellant's interest therein to the appellee. After her motion for a new trial was overruled the appellant filed a motion in which she asked the court to declare the entire proceedings null and void because she had not been served with summons, which fact, she asserts, left the court wholly without jurisdiction in the matter.
By this appeal the appellant asks us to decide whether or not (1) the trial court had jurisdiction to render *550 judgment; (2) the decision is sustained by sufficient 1. evidence; (3) the decision is contrary to law; (4) the trial court had authority and power to quiet title to real estate in a divorce action and to appoint a commissioner to convey the same to the appellee; (5) the trial court erred in overruling her motion to declare the entire proceedings null and void; and (6) the trial court erred in appointing his daughter as a special reporter of the cause without exacting bond and oath. Question No. 6, though extensively briefed by counsel for both parties, was expressly waived by the appellant in the oral presentation of her case to this court and we therefore pass the same without comment.
We are confronted with a preliminary question growing out of the somewhat unsatisfactory form or make up of the general bill of exceptions containing the evidence. Many exhibits are 2. not inserted in their proper places but are attached to such bill of exceptions without reference to the order of their introduction or in connection with the testimony to which they pertain. To illustrate — "Defendant's Exhibit 6" was introduced and read in evidence as shown at page 335 of the transcript but appears at page 321 thereof. "Plaintiff's Exhibit 109 to 158" were introduced and read in evidence as appears at page 213, and many of them are merely folded into the transcript unattached and photostatic copies of certain deeds appear without the reporter's identification thereon. The appellee insists that a bill of exceptions, subject to such defects, does not bring all of the evidence into the record and therefore no question requiring a consideration of the evidence is before us. The reporter's certificate, however, authenticates the general bill as being a full, true and complete transcript of all the evidence *551 given in the case and no showing is made that any exhibit appearing therein is not what it purports to be. While we do not approve of the many irregularities in the transcript, we do not consider them sufficiently serious to warrant a disposition of this case without consideration, on the merits, of the various questions presented.
The appellant's challenge to the jurisdiction of the trial court is based on § 3-1211, Burns' 1933, which provides: "The trial of no cause for absolute or limited divorce shall 3, 4. be had or heard by any court until after the expiration of sixty (60) days from the date of the issue of such summons as shall have been duly served on the defendant spouse or from the date of the publication of the first notice to a non-resident defendant. Any trial had or decree rendered in any such case in less than such sixty (60) days shall be null and void." The appellant says that because she is a resident defendant and was not served with summons the court was powerless, under the express prohibition of the above statute, to hear and dispose of this case until she had been so served and then only after the expiration of 60 days from the date such summons was issued. We are unable to arrive at such conclusion. The act in question is purely procedural in nature and its principal purpose is to set up a so-called "cooling off period" during which courts cannot dispose of divorce cases even though they may have acquired jurisdiction of the person of the defendant. Having once acquired such jurisdiction in any manner recognized by law and the period of inhibition having expired, there seems to be no logical reason to render a court powerless to proceed because such jurisdiction was acquired in some other manner than by the service of summons. It is our opinion that any procedure *552 amounting to the legal equivalent of service of summons satisfies the requirements of the statute. In the case before us the appellant, upon learning of this action, employed counsel and in his company voluntarily appeared and submitted herself to the jurisdiction of the court. She asked the court for affirmative relief by her petition for suit and support money and invoked the jurisdiction of said court by vigorously prosecuting the cause of action set up in her cross-complaint. Having lost the decision she now seeks to repudiate the entire proceedings on the grounds that the court had no power to decide.
Were this an ordinary civil proceeding any court would pronounce her position untenable without hesitation. This is a suit for divorce, however, and the state, as the 5-8. representative of society generally, is a third party to the litigation and the question arises as to whether the defendant can waive the service of summons and voluntarily submit her person to the jurisdiction of the court. In the case ofWillman v. Willman (1877),
The appellant's contention that the decision is not sustained by sufficient evidence can be disposed of with little comment. She is charged with cruel and inhuman treatment which 9-11. includes mental as well as physical cruelty. Ringenberg v. Ringenberg (1942),
The appellant's major contention in reference to the legality of the decision is based on the court's finding that the appellee is the owner of certain real estate held by the parties as tenants by entireties and appointing a commissioner to convey the appellant's interests therein to him. The appellant insists that upon divorce she became the owner of an undivided one-half of said real estate as a tenant in common with the appellee and that the court had no power to make any other disposition thereof. In support of this contention the appellant leans heavily onAlexander v. Alexander (1895),
Considering the above excerpt from the Alexander decision asobiter dictum, we deem it merely advisory and believe that it should yield to any recognized rule of law that will 12, 13. more nearly affectuate the equities of the present case (see Sharpe v. Baker (1912),
The evidence most favorable to the court's exercise of its discretion in allotting the real estate in question to the appellee tends to prove that he had owned the same, 14, 15. with title in his own name, for many years prior to his marriage to the appellant. He had lived there 33 years prior to such marriage on May 10, 1942, and immediately thereafter the appellant became insistent in her demand that title to the property be put in both their names so that if anything happened to the appellee she would be protected. Her constant importunities bore fruit and on May 26, 1942, by a series of deeds, wholly without consideration save the mutual love and affection ordinarily existing between husband and wife, the entireties estate upon which the appellant relies was created. From that moment the attitude of the appellant toward the appellee changed and she forthwith launched into a course of conduct which the trial court found to be cruel and inhuman in its relation to the appellee. The appellant brought no property of consequence to the marriage and in fact had been given money by the appellee to pay her pre-nuptial debts. In *557 16 days she acquired an entirety interest in real estate which the evidence discloses was then and is now worth from 20 to 25 thousand dollars and immediately thereafter became recreant to her marriage vows. To the trial court, which found such to be the facts, it seemed unconscionable that the appellant should be declared the owner of an undivided one-half of the property so acquired and to us, who must accept the facts so found, it is inconceivable that the trial court was without power to do equity by the return of the property to the appellee. Whether or not a commissioner should have been appointed we do not decide. Having concluded that the trial court had power to do equity as above indicated, it matters not what instrumentality was chosen to effectuate the purpose and any error predicated upon the use of a commissioner, if error at all, was harmless.
In its decree the court ordered the appellant to return to the appellee certain U.S. War Bonds which he had purchased and caused to be issued payable to himself and wife jointly. The 16, 17. appellant contends that, even though the consideration paid for said bonds was the separate property of the appellee, it is presumed that he intended to make her an absolute gift of one-half interest therein. We recognize this to be the general rule, Radabaugh v. Radabaugh, supra, but such presumption, of course, vanishes in the face of direct evidence to the contrary. The evidence most favorable to the appellee on this point indicates that he never intended his wife to have any present vested interest in the bonds in question, during his lifetime. He bought them out of his separate estate and retained possession of them until they were removed by the appellant from a strongbox without his knowledge and to which box she had gained access without his free-will consent. On these facts we hold that there was no delivery, *558 actual or constructive, and that the appellant had no vested interest in the bonds in controversy and the court was perfectly free to make such disposition of them between the parties as it concluded would meet the ends of justice.
The appellant's contention that the trial court erred in overruling her motion to declare these entire proceedings null and void is based solely on the fact that summons was not served upon her as required by the so-called 60-day divorce statute. We have disposed of this question in our discussion of the legality of the decision and no further comment is deemed necessary.
The appellee has assigned cross-error by which he charges the court with having unlawfully awarded the appellant money with which to pay her attorney for his services in connection with the trial of this cause. The questionable allowance was made as a part of the court's final decree which the appellant insists cannot be done except "on decreeing a divorce in favor of the wife or refusing one on application of the husband." Section 3-1216, Burns' 1933 (Supp.). As the court did not decree a divorce in favor of the wife nor refuse one on application of the husband in the present case, the appellee contends the court's decree is unlawful insofar as it provides for a fee for the appellant's attorney.
In Hart v. Hart (1929),
We find no error and judgment is affirmed.
NOTE. — Reported in