24 Ind. 468 (Ind. 1865), , Ewing v. Ewing

• Citation: 24 Ind. 468
• Docket Number: .
• Date: Invalid date
• Parties: Ewing v. Ewing
• Court: Indiana Supreme Court

Page 468

24 Ind. 468 (Ind. 1865)

Ewing

v.

Ewing

Supreme Court of Indiana

May, 1865

APPEAL from the De Kalb Common Pleas.

The judgment is affirmed, with costs.

J. Morris and R. Brackenridge, for appellant.

A. Ellison, for appellee.

OPINION

Gregory, J.

Charlotte F. Ewing, on the 6th of January,

Page 469

1864, filed her complaint in the court below against the appellant, for divorce, alimony and the custody of her child. The complaint charged that the plaintiff, for more than twenty years last past, had been, and then was, a bona fide resident of this state, and then was a resident of the county in which this suit was brought. The alleged causes for divorce were want of affection on the part of the husband, and his failure to make reasonable provision for his family. The summons was issued to the sheriff of Allen county, and was by him served on the defendant, by leaving a copy at his usual place of residence, on the day of the filing of the complaint. On the 19th of that month, the defendant was defaulted. The district attorney appeared and resisted the divorce. The court heard the evidence, and found that all the allegations of the complaint were true, and decreed a divorce, alimony, and the custody of the child to the wife.

On the 19th of July following, the appellant, William G. Ewing, filed his complaint for a new trial. On the 19th of January, 1865, this complaint was amended. A demurrer to the amended complaint was filed by the appellee, which was sustained, and final judgment for costs rendered thereon. The alleged causes relied on for a new trial were: First, the misconduct of the plaintiff in falsely alleging that she was a resident of the county of De Kalb, for the fraudulent purpose of obtaining the decree in the absence, and without the knowledge, of the defendant. Second, that the suit was commenced and the decree rendered during the absence of the defendant from the state, and without any knowledge, actual or otherwise, of its existence and pendency, until the same was determined; that the allegations in the complaint, the commencement of the suit, and the decree, were matters of entire surprise to him, against which, under the circumstances, no ordinary prudence could guard. Third, that the finding of the court was not sustained by the evidence, there being no evidence at all that the plaintiff was, at the commencement of the suit, a

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resident of the county of De Kalb; the defendant not knowing until after the rendition of the decree, and the adjournment of the court, that there was no evidence offered on this point. The errors assigned are: first, that the court below had no jurisdiction of the person of the defendant, nor of the plaintiff; second, that the court had no jurisdiction of the subject matter; third, that the court erred in sustaining the demurrer to the plaintiff's (defendant's) complaint for a new trial; fourth, that the court erred in refusing to grant a new trial.

This court, in 1861, in the case of Herron v. Herron, 16 Ind. 129, held that the Common Pleas Courts had jurisdiction in divorce cases; and the question is, shall that decision be overruled? Since the decision in that case, a large number of marriages have been dissolved by the Common Pleas Courts. The parties thus divorced, relying upon the validity of these decrees, have intermarried with others, and children have been born to them. Were this an original question we confess that we should give great weight, in its determination, to the able argument of the learned counsel of the appellant. This, however, is one of the rules which it is more important shall be settled, than how it is settled. For the reasons stated in Rockhill v. Nelson et al., ante, p. 422, we are of opinion that the case of Herron v. Herron, supra, ought not now to be overruled. But while we feel bound to adhere to that ruling, we shall not be constrained by the legal deductions which may be drawn therefrom, in the determination of other questions growing out of the act regulating the granting of divorces.

Had the court jurisdiction of the person of the defendant? By section 6 of the divorce act, (2 G. & H. 350,) it is provided that "Divorces may be decreed by the Circuit Courts of this state, on petition filed by any person who, at the time of the filing of such petition, shall have been a bona fide resident of the state one year previous to the filing of the same, and a resident of the county at the time of filing such petition, which bona fide residence shall be

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duly proven by such petitioner to the satisfaction of the court trying the same."

The code, after making provision for actions in which real estate is involved, for certain actions for the recovery of a penalty or forfeiture imposed by statute, for suits against a public officer, and where a corporation, company, or an individual has an office or agency in any county for the transaction of business, provides that "in all other cases, the action shall be commenced in the county where the defendants, or one of them, has his usual place of residence. Where there are several defendants residing in different counties, the action may be brought in any county where either defendant resides, and a separate summons may be issued to any other county where the other defendants may be found; and in cases of non-residents, or persons having no permanent residence in the state, actions may be commenced and process served in any county where they may be found." 2 G. & H., § 33, p. 58. It may be contended, with great plausibility, that, under the code, a party served with...