73 N.E.2d 767 | Ind. | 1947
This is an original action asking us in effect to mandate the respondent to strike out, vacate and expunge from the record each and every ruling and order, including decree of divorce, judgment for alimony, and order to pay money for support of children, entered in an action for divorce brought by relator's wife against him.
Relator's wife filed her action for divorce against relator in the Vanderburgh Probate Court, summons was issued and served upon the relator as defendant in the divorce proceeding, appearance was entered by relator's attorney, the venue of the action was changed to the Gibson Circuit Court on the application of relator, the case was set for trial, but on the appointed day neither the relator nor his attorney appeared. The prosecuting attorney appeared for the State, trial was had and decree of divorce was entered, together with alimony judgment, and order was made that relator pay for the support of children and a stipulated sum as fee for his wife's attorney. This was done on March 6, 1947, and on April 15, 1947, relator filed in the Gibson Circuit Court his petition to strike, vacate and expunge from the record all the proceedings, orders and judgment theretofore entered in said case and to dismiss same. This motion was overruled by respondent Judge on May 20, 1947, and this original action was thereupon filed in this court.
At the time the original complaint was filed in the divorce proceeding there was also filed by plaintiff her affidavit of residence and occupation required by statute. The sufficiency of this affidavit is not questioned. The complaint itself, however, does not allege any residence *285 of the plaintiff, and it is relator's contention that the respondent court was without jurisdiction in the divorce action for the sole reason that the petition for divorce did not allege the period of residence required by statute to entitle plaintiff to a divorce.
Section 3-1203, Burns' 1946 Replacement provides that divorces may be decreed on petition by any person who at the time of filing such petition is and shall have been a bona fide resident of the State for one year previous to such filing and abona fide resident of the county at the time of and for at least six months immediately preceding such filing, and the statute provides that these facts of residence shall be proven by petitioner to the satisfaction of the court by at least two resident householders of the State. The same statute provides that the person shall file with his petition an affidavit sworn to by himself, in which he shall state the length of time he has been a resident of the State and particularly the place in which he has resided for the year last past.
It will be observed that the first part of the statute stipulates residence requirements which shall be proved at the trial, and the second sentence provides that an affidavit 1. of residence shall be filed with the clerk of the court when the divorce action is commenced. There is no statutory requirement that the facts of residence shall be pleaded, although, of course, these facts should be averred in the complaint. Miller v. Miller (1914),
Beginning with the case of Smith v. Smith (1916),
Relator cites the case of Hetherington v. Hetherington
(1928),
We hold in the case before us that the failure of the plaintiff in the divorce case to allege in her complaint the statutory facts of residence did not deprive the court of jurisdiction. Such failure would have made the complaint insufficient on demurrer, and if there had been no proof of such residence, such failure could have been presented by a motion for a new trial and when brought to this court upon appeal would have been grounds for reversal.
Mandate denied.
NOTE. — Reported in