Nos. 14,407—(187) | Minn. | Jul 14, 1905
This is an action for divorce, brought by plaintiff upon the ground of fraud alleged to have been perpetrated upon her at the time of her marriage by the wilful and fraudulent concealment by defendant of the fact that he had been afflicted with insanity. Complaint and summons were served personally on defendant while an inmate of an insane asylum in Canada, plaintiff then having resided in this state for the period of. only thirty-five days. There being no appearance on the part of defendant, proofs were offered in behalf of plaintiff; and the court found the facts as alleged, but dismissed the action, presumably upon the merits. Having concluded that the judgment must be affirmed upon the ground that the action was prematurely brought, we refrain
Under our statute, it would seem that jurisdiction may be obtained by the service of summons and complaint upon an insane party personally, but what proceedings should be taken thereafter to protect his interests does not seem to have been considered by the trial court. We will pass the subject at this time with the suggestion that, even if jurisdiction may be thus secured, it would at least be desirable, and perhaps mandatory, that the trial court require the appointment of a guardian ad litem to protect the interests of respondent at the trial and during the subsequent proceedings.
Section 4792, G. S. 1894, provides that no divorce shall be granted unless the complainant has resided in this state one year immediately preceding the time of exhibiting the complaint, etc. Thelen v. Thelen, 75 Minn. 433, 78 N. W. 108. Plaintiff submits that this section has no application to actions brought to annul void or voidable marriages under the provisions of sections 4785 — 4789, but has application only to actions brought for divorce upon grounds which occur subsequent to the marriage, assuming the marriage to be valid. We are not impressed with this suggestion, and our view is that the term “divorce,” in section 4792, was used advisedly, having reference to the entire subject of procedure by action to secure annulment of the marriage. Reference to the origin of the statute throws light on the subject. Chapter 62 of the General Statutes bears the general heading, “Divorce,” and had its origin in chapter 66 of the Statutes of 1851, and, as originally enacted, contained the same general provisions as now exist under the general head “Divorce.” It is not reasonable to suppose that the legislature intended to make any distinction when at a later period what is now section 4792 was added.
Having disposed of this appeal upon a purely jurisdictional question, the judgment is affirmed, without prejudice to the right of plaintiff to bring a future action for the cause alleged in the complaint, if so advised.
Judgment affirmed.
START, C. J., absent.