185 Ind. 75 | Ind. | 1916
— This was an action for divorce filed by appellee in the Adams Circuit Court. The venue was changed to the Wells Circuit Court, where there was a trial resulting in a judgment in favor of appellee, granting her a divorce, $6,000 alimony and $400 for attorney’s fees.
The complaint charged cruel and inhuman treatment. No question is raised on the sufficiency of the complaint and it need not be set out here.' The only question presented for review is that growing out of the affidavit of residence filed by appellee. It is claimed by appellant that there was no sufficient affidavit ever filed, and that such failure to file an affidavit, showing appellee’s residence, was a failure to comply with the jurisdictional requirements in a divorce proceeding, and that therefore the trial court never had jurisdiction to try the cause. The affidavit in question which was filed with the complaint in attempted compliance with §.1066 Burns 1914, §1031 R. S. 1881, was as follows:
“State of Indiana, Adams County, ss:
In the Adams Circuit Court, February Term, 1913.
Adeline ■ Smith,
v. Complaint for Divorce.
Joseph W. Smith.
Cause No. 8484
Affidavit of Residence by Plaintiff.
Adeline Smith, being duly sworn, upon her oath deposes and says: That she is the plaintiff in the above entitled cause of action; that she has been a resident of the state of Indiana for sixty-five years last past, and that for two years last past she has been a resident*77 of Decatur, in said county and state, and has during said time resided at No. - Mercer Avenue, Decatur, Indiana; that her occupation is that of a house wife.
Adeline Smith.
State of Michigan, Shiawassee County, ss:
Before me, Leon F. Minor, a notary public in and for said county and state, personally appears Adeline Smith, who, being by me first duly sworn, subscribed the foregoing affidavit is true as she verily believes, this 26th day of April, 1913.
Witness my hand and notarial seal,
Leon F. Minor,
Notary Public,
Shiawassee Co., Mich.
Leon F. Minor,
Notary Public,
Shiawassee Co., Mich.
My commission expires August 25, 1915.”
The specific objection to the affidavit is that it is verified before a notary public in the state of Michigan, ánd is therefore not in compliance with the statute above referred to. The statute reads as follows: “Divorce may be decreed by the superior and circuit courts of this state, on petition filed by any person who, at the time of filing such petition, is and shall have been a bona fide resident of the state for the last two years previous to the filing of the same, and a bona fide resident of the county, at the time óf and for at least six months immediately preceding the filing of such petition; which bona fide residence shall be duly proven by such petitioner, to the satisfaction of the court trying the same, by at least two witnesses who are resident freeholders and householders of the state. And the plaintiff shall, with this petition, file with the clerk of the court an affidavit subscribed and sworn to by himself, in which he shall state the
It has been suggested that §476 Burns 1914, §460 R. S. 1881, respecting notaries public of foreign jurisdictions is applicable in this case. That section provides: “Certificates or instruments, either printed or written, purporting to be the official act of a notary public of this state, of the District of
It follows that the purported affidavit is insufficient either at common law or under the requirements of our statute, and that, because of the absence of a’ proper affidavit, the court below was without jurisdiction to try the case. Wills v. Wills, supra. Judgment reversed.
Note. — Reported in 113 N. E. 296. Authentication of an affidavit taken before foreign notary, 1 Ann. Cas. 544; 2 C. J. 335, 336; 2 Cye 14, 15. See under (2) 12 L. R. A. (N. S.) 1197; 14 Cye 663.