Morris v. Morris

| Del. Super. Ct. | Apr 3, 1912

Woolley, J.

delivering the opinion of the court:

Jurisdiction of actions for divorce is conferred upon the Superior Court by the Act of Assembly of March 29, 1907 (Laws of Del. Vol. 24, Chap. 221), and jurisdiction over the parties to such actions is acquired in the manner prescribed by the act, namely,

“The proceedings for divorce, * * * shall be by petition filed with the prothonotary of the Superior Court in the county of the petitioner’s residence, * * * whereupon a summons shall issue for the defendant’s appearance and upon proof of the service of such summons more than twenty days before the time of its return or upon proof of substituted service by publication as hereinafter provided, the cause shall proceed to trial”, etc.

“When the defendant cannot be served personally within the state, * * * an alias summons shall issue to the second term next after issuing the original writ, which the sheriff shall publish”, etc. Sections 7, 9, 10, 11, Act of Assembly, supra.

Service upon the original writ issued in this case was found to be insufficient and the case whs continued for an alias. Upon the: return of the alias summons it appeared that the process was executed not by substituted service as required by the statute, but by personal service made twenty days before the return in the manner prescribed for service of an original writ. The question is therefore presented, whether the Superior Court can acquire jurisdiction of the defendant in an action for divorce, by personal service of an alias writ of summons, when the statute prescribes for that writ another method of service.

When the history of the law of divorce is considered in connection with the known origin and avowed purpose of the existing statute upon the subject, it is apparent that the provisions of the statute should be strictly construed and rigidly enforced. Among other things the statute contemplates certainty of notice and the avoidance of collusion, and to that end it has prescribed the character of the process and the methods of its service. It has further provided that “upon proof” of the execution of the process in conformity with its requirements, the Superior Court may then have jurisdiction to proceed to trial and judgment. Service of one kind or the other, has therefore been held essential to jurisdiction, and it has likewise been held that the service prescribed by the statute can neither be waived nor its defects cured by the appearance of the defendant either upon the record or in person. Wood v. Wood, 1 Boyce 71, 74 Atl. 376.

As it is against the policy of the divorce act to allow a defendant to substitute his appearance for the service required, it is also against the policy of the act to allow service of any kind to be substituted for service of the one kind prescribed by the act, even though the service attempted be in truth superior to the one required. For a proceeding to be legal, service of the process upon which it is founded must likewise be legal, and the legality of such a service is dependent upon its conformity to the law that prescribes it. Odessa Loan Ass’n v. Dyer, ante 457, 81 Atl. 469.

Leave to withdraw petition without prejudice'.