176 Ind. 631 | Ind. | 1911
Appellee brought this suit against appellant to obtain a divorce, alleging facts which appellee claims constitute cruel and inhuman treatment. The complaint was in one paragraph, and was answered by a general denial. A trial of the cause resulted in a finding for appellee, and a judgment granting him a divorce. A motion for a new tidal was overruled.
It was the legislative intent in the enactment of said provisions to limit the operation of the statute to bona fide residents of the State, and to prevent nonresident persons from procuring divorces through fraud or imposition practiced upon the court. The affidavit required by said section was
Said §1.066 also provides that a “divorce may be decreed by the superior and circuit courts of this State, on petition filed by any person who, at the time of the filing of 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 of 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.”
It has been held by this court that the requirement in said section, that the bona fide residence of the petitioner shall be proved by at least two witnesses who are resident freeholders and householders of the State, is mandatory. Driver v. Driver (1899), 153 Ind. 88, and cases cited; Prettyman v. Prettyman (1890), 125 Ind. 149.
In the case last cited, this court said on page 150: “'A mandatory provision of the statute, which requires proof by witnesses who possess special qualifications, cannot be satisfied or set aside by a tacit agreement or admission of the defendant, nor in any other manner. There must be actual proof to the satisfaction of the court by witnesses possessing the statutory qualifications. This is the positive requirement of a statute which was enacted to prevent nonresidents of the State, over whose marital status our courts can acquire no jurisdiction, from obtaining fraudulent divorces. In every divorce suit the State, for the enforcement of its policy concerning the marital relation,- constitutes the third party, and no admission can be made by the other parties which will affect the public interest. ’ ’
In the ease of Eastes v. Eastes (1881), 79 Ind. 363, 368, this court held that the provision of said section, requiring the filing of said affidavit, was mandatory.
It is evident that where it is not shown by the transcript on appeal that an affidavit of the petitioner was filed as required by §1066, supra, the cause must be reversed.
If this were a collateral instead of a direct attack upon the judgment, we would have a different question.
On application of appellee a writ of certiorari was issued, requiring the clerk of the court below to make out and certify a full and complete transcript of the papers and entries in said two proceedings in the court below. This has been done by said clerk, and said transcript is on file in this court as a part of this appeal. Aetna Life Ins. Co. v. Sellers (1900), 154 Ind. 374.
Appellant first insists that the court below erred in overruling' her demurrer to the complaint to reinstate said affidavit. The proceeding was based on §1291 Burns 1908, §1233 R. S. 1881, which authorizes the reinstatement of any paper or part thereof, in any judicial proceeding, that has been lost or destroyed, when any person interested therein files his complaint in the court to which it belonged, or which has jurisdiction over or control thereof, showing in such com
• The judgments rendered in the proceedings brought since this appeal was perfected are reversed. The efforts to correct the record by bringing in what is claimed to be a correct copy of the affidavit filed by appellee with his petition for divorce being ineffectual, the judgment in the proceedings for divorce is reversed, with instructions to dismiss said proceeding.