39 Del. 487 | Del. Super. Ct. | 1938
delivering the opinion of the Court:
The Divorce Act, substantially as it now exists, was approved March 29,1907 (Ch. 221, Vol. 24, Delaware Laws; Ch. 86, Rev. Code 1935, § 3497 et seq.). Morris v. Morris, supra, was decided in 1912, and the construction given to the section of the statute now under consideration has been consistently followed. In that case, as here, the original writ of summons was returned “non est inventus”, and an alias writ to the next succeeding term was served personally, but no publication was made. The Superior Court held that the statute contemplated certainty of notice and the avoidance of collusion, and to those ends it had prescribed the character of the process and the method of its service; and that it was against the policy of the act to allow service of any kind to be substituted for service of the one kind directed by the act, even though the service attempted was, in truth, superior to the one required.
The Court, manifestly, construed the language of Section 3506, “when the defendant cannot be served personally within this State,” as referable only to the original writ of summons; and it held publication of the alias writ to be compulsory, notwithstanding that, in the particular case, personal service of the writ was, in fact, accomplished.
The petitioner contends that a different construction of the Section is not only permitted, but necessitated; permitted, because the words, “shall publish” were intended
Construction of a statute means only the ascertainment of the true intent and purpose of the legislature, discoverable primarily from the language employed. The rules and maxims are adopted and applied to that end, and they are useful in case of doubt and for the removal, not the creation of doubt. Hence, the rule is well established that, where the language of the statute is plain and its meaning clear, there is no occasion for construction. State ex rel. Green v. Foote, 5 W. W. Harr. (35 Del.) 514, 168 A. 245; Van Winkle v. State, 4 Boyce 578, 91 A. 385, Ann. Cas. 1916D, 104.
The authority of the Superior Court to hear and determine causes for divorce without intervention of a jury is found in Section 3503 of the Code. That section provides for the filing of a petition, the issuance of a summons for the defendant’s appearance and proof of the service more than twenty days before the return day of the writ, or proof of substituted service by publication as provided by Section 3506. The language of the latter section is, “when the defendant cannot be served personally within this State * * *
It is argued that a divorce proceeding has grown to include a judgment against the defendant for costs and counsel fees, and sometimes a money judgment for alimony, and in these respects is one in personam; and, furthermore, as the statute (Section 3505, Rev. Code 1935) expressly applies to divorce, absolutely or from bed and board, and as a divorce a mensa et thora is not a proceeding in rem, Pettis v. Pettis, 91 Conn. 608, 101 A. 13, 4 A. L. R. 852, the
The argument rests upon an unsound premise. An action for divorce is a special statutory action, in which the jurisdiction depends upon the statute. In so far as it affects the marital status of the parties, it is generally deemed to be an action in rem, or quasi in rem. 9 R. C. L. 247; 19 C. J. 22; Rigney v. Rigney, 127 N. Y. 408, 28 N. E. 405, 24 Am. St. Rep. 462. See Harding v. Harding, 198 U. S. 317, 25 S. Ct. 679, 49 L. Ed. 1066. The action has been held to be one in rem with respect to the custody of minor children within the jurisdiction of the Court, Estate of Newman, 75 Cal. 213, 16 P. 887, 889, 7 Am. St. Rep. 146; and with respect to property of the defendant husband within the territorial jurisdiction of the Court specifically proceeded against and described in the petition for divorce and alimony. See discussion in Hood v. Hood, 130 Ga. 610, 61 S. E. 471, 19 L. R. A. (N. S.) 193, 14 Ann. Cas. 359, and cases there cited. It has been said that the proceeding is one in personam in all matters except so far as the marital status is affected. 19 C. J. 23. But, the proceeding here was for an absolute divorce. We are not concerned with the extra-territorial effect of a judgment for alimony or costs based upon a constructive service. The argument amounts to this: that inasmuch as a judgment in a divorce proceeding may assume, with respect to matters incidental, the aspect of a judgment in personam, the statute directing the issuance and publication of an alias writ, after a return of non est inventus to the original writ, is unconstitutional unless provision is made for service of the alias writ, and, therefore, the Court is bound to construe the statute as allowing personal service of the alias writ, which, if made, is sufficient to confer jurisdiction.
In the Morris Case the Court laid stress upon certainty of notice and avoidance of collusion as flowing from the substituted service of process, and at the same time it spoke of personal service as being superior to the service required by the statute. It may be difficult to understand how publication of, as opposed to personal service of, the writ, tends to certainty of notice. It is less difficult to understand that the compulsory publication of the alias writ does have a certain tendency to avoid collusion between the parties. But it must be remembered that the Court was considering the
It was within the authority of the legislature to provide for a reasonable method of substituted service of process following a demonstration of inability to make personal service of the original writ within the State. The plain meaning of the language of the statute must be given effect. It is for the legislature, not the Court to effect a change if one is deemed to be necessary. No publication of the alias writ having been made in accordance with the statutory command, the Court did not acquire jurisdiction, and it refused properly to hear the cause.
It is ordered that this opinion be certified to the Superior Court for Kent County.