185 N.E. 668 | Ind. Ct. App. | 1933
This was an action for divorce instituted by appellee against appellant. The affidavit of residence, as required by Section 1097, Burns Ann. St. 1926 (§ 904, Baldwin's Ind. Ann. Stat. 1934), was filed with the complaint, and appeared, on its face, to comply with the statute, supra, in every detail. The cause was submitted to the court for trial on March 14, 1931, and after evidence was heard, the court took same under advisement. While so pending, on the 17th day of March, 1931, appellee filed a petition with the court *432 asking that she be authorized to file an amended affidavit of residence for the reason that she desired to state same more particularly. This petition was granted over the objection and exception of appellant.
At the trial of this cause it was disclosed by the evidence that appellee, at the time the original affidavit was made, was not in Rush County, but was in Washington County, Indiana; that she had previously signed the affidavit and mailed same to the Notary at Rushville, Indiana; that she then called said Notary (who was at the time in Rush County, Indiana) on the telephone and swore to the affidavit in question. On April 18, 1931, the court rendered judgment in favor of appellee, granting her a divorce. Appellant filed a motion for a new trial, which was overruled; hence this appeal.
It is appellant's contention that the affidavit of residence herein is void and a mere nullity for the reason that the act of the appellee in attempting to swear over the telephone did not constitute such a swearing as is required by the statute, and, if the original affidavit was void, there was nothing to amend and therefore an amended affidavit could not be filed.
This contention has some merit, but the action of this court inHoffman v. Hoffman (1918),
Finding no reversible error, the judgment of the Rush Circuit Court is in all things affirmed, and it is so ordered.
Bridwell, J., dissents.