165 Ga. 233 | Ga. | 1927
On August 7, 1926, John Millis filed his petition against Mrs. M. R. Millis, to set aside verdicts and final decree granting her a divorce from him.. He made these allegations: He and defendant, after marriage, lived together as husband and wife for twenty years and until January 1, 1914, when without cause she left him and established her domicile in Fulton County of this State. On May 6, 1925, she filed a suit for divorce, and made an affidavit stating that he resided outside of Georgia and in Cleveland, Ohio. An order was taken for the service on him by publication. This service was to be effected by publication of process, twice a month for two months prior to the next term of court, in the public gazette known 1 as Fulton County Daily Report. On May 26, 1925, the deputy clerk of the court certified that he had that day mailed a copy of said gazette, containing a
By amendment he alleged that since the filing of his petition in this case he has learned that on August 9, 1926, Mrs. Millis
The defendant demurred upon the ground that the petition set forth no cause of action. The court sustained the demurrer, and the petitioner excepted.
Service of a non-resident defendant in a divorce suit shall be perfected as prescribed in the Code in causes in equity. Civil Code (1910), § 2951. If the defendant in an equitable petition does not reside in this State, service of the petition may be made by publication. § 5553. Where the defendant resides out of this State, and it is necessary to perfect service upon such person by publication, upon the fact being made to appear to the judge of the court in which suit is pending, said judge may order service perfected by publication in the paper in which sheriff's advertisements are printed, twice a month for two months. The contents of the notice are prescribed. • § 5556. It has been held that there can be no service by publication without this order. Where the residence or abiding-place of the non-resident party is known, the party obtaining the order shall file in the office of the clerk, at least thirty days before the term next after the order of publication, a copy of the newspaper in which such notice is published, with the notice plainly marked; and thereupon it shall be the duty of the clerk at once to enclose; direct, stamp, and mail said paper to the party named in the order, and make an entry of his action upon the petition or other writ in said case. § 5557. This section, being in derogation of the common law, must be strictly construed in favor of getting notice to the non-resident party. So we have held that the paper containing this notice can not be mailed by any person except the clerk or his deputy. Williams v. Ballen, 156 Ga. 620 (119 S. E. 709). The courts quite uniformly hold that all the statutory requirements for the institution and prosecution of such proceedings, and especially such as are of a jurisdictional character, must be strictly and literally observed, in order that the judgment entered therein shall be of legal force
This brings us to construe section 5557, and to ascertain what information which the plaintiff possesses must be furnished by him or her to the court or its clerk, so as to enable that officer to properly mail such notice, and thus give notice to the defendant of the pendency of the suit. The decisions which bear upon this subject are few, so far as we have been able to find. The exact point raised in this case has never been passed upon by this court. In the first place, we have seen that this section is to be strictly construed in favor of facilitating the giving of notice to nonresident defendants in divorce cases. It must be borne in mind that the object of this statute is to provide personal as well as
It appears that the defendant made an affidavit in her divorce suit for the purpose of procuring an order for service by publication of plaintiff, in which she deposed that the residence of plaintiff was at Cleveland, Ohio. The petition alleges that the wife' well knew the street and number of plaintiff’s residence in that city and his street address, before and at the time she instituted her suit for divorce; and that she concealed his full and complete address and failed to furnish it to the court, for the deliberate purpose of preventing him from receiving notice of her suit and appearing and making a valid defense which he had thereto. The demurrer admits the truth of this allegation. The wife should have stated, in her affidavit for the purpose of obtaining the order for perfecting service by publication in the divorce suit, the street address of her husband in Cleveland, Ohio. As, under his allegations, he did not receive the newspaper containing the notice of the divorce suit, and did not know of its pendency until after the decree was granted, and as the wife is charged in the petition with concealing and failing to give to the court or the clerk the street address for the express purpose of preventing the husband from receiving the notice and making a defense to her suit, such conduct on the part of the wife, if true, amounted
The petition made a case to be passed upon by the jury. In DeLay v. Latimer, 155 Ga. 463 (117 S. E. 446), the proceeding was one to foreclose a mortgage, and it is true that the inclosure or envelope containing the newspaper in which the notice to the defendant was published was addressed to the defendant at Charleston, South Carolina; but in that case the question raised in this case was not made or involved, and besides there was a collateral attack by a claimant upon the judgment of foreclosure. In Moore Realty Co. v. Carr, 61 Ore. 34 (120 Pac. 742), the judgment was collaterally attacked; and the Supreme Court of Oregon held that it was not necessary to decide the question whether the failure of the affidavit to state the post-office address of the defendant would be fatal to the proceeding, when raised in a direct attack upon it. In the present case the attack upon the judgment in the divorce case is direct. Furthermore, in that case, the defendant was later served, before judgment, with the notice. Counsel for the defendant strongly rely upon Burke v. Donnovan, 60 Ill. App. 241, where the Court of Appeals of Illinois, in construing a statute of that State, held that a preliminary affidavit made for the purpose of obtaining an order for perfection of service by publication, which stated the urban place of residence of the defendant, was sufficient, and that it was not necessary to give the street and number at which the defendant resided. The terms of the Illinois statute were not set out. To sustain its ruling the court cited Hannas v. Hannas, 110 Ill. 53, and Schaefer v. Kienzel, 123 Ill. 430 (15 N. E. 164). By reference to these cases it will appear that the court was dealing with a statute which required that the affidavit made by the complainant or his attorney, for the purpose of obtaining an order for the perfection of service by publication, should state that the defendant resided or had gone out of the State, and should state the place of residence of such defendant. The Court of Appeals of Illinois held that an affidavit which stated that the defendant resided in a given city was a sufficient compliance with this statute, and that it was not necessary to give the street and number at which the defendant resided.
Did the court err in entering this order nunc pro tunc? If the trial judge actually made an investigation and viva voce granted an order adjudging perfection of service by publication, which he omitted to reduce to writing and enter upon the petition in the divorce case, he could by judgment nunc pro tunc have such order entered upon the petition. Vaughn v. Fitzgerald, 112 Ga. 517 (37 S. E. 752); Selph v. Selph, 133 Ga. 409, 411 (65 S. E. 881). No attack is made upon the nunc pro tunc judgment as having been granted without 2iotice to the plaintiff and without an opportunity to be heard in resistance to its allowance. Whether a nunc pro tunc judgment can be rendered ex parte and without notice to the opposite party is not now for decision. Certainly the better practice would be to file a motion for the grant of such nunc pro tunc judgment, and give to the opposite party notice of such motion and an opportunity to be heard. So we are of the opinion that an order adjudging perfection of service by publication, and its entry upon the petition in a divorce case, are not jurisdictional in character, and that the lack of such order and its entry does not render the judgment void. Where such order has been orally
The court erred in sustaining the demurrer to the petition, under the rulings made in the first and second divisions of this opinion. Judgment reversed.