Amy v. Amy

• Decision Date: 21 December 1895
• Docket Number: 602
• Citation: 12 Utah 278,42 P. 1121
• Court: Utah Supreme Court
• Parties: IN THE MATTER OF THE ESTATE OF OSCAR A. AMY, DECEASED. JENNIE AMY, APPELLANT, v. ROYAL D. AMY AND OTHERS, APPELLANTS, v. ADELIA YOUNG AND OTHERS, RESPONDENTS. [1]

42 P. 1121

12 Utah 278

IN THE MATTER OF THE ESTATE OF OSCAR A. AMY, DECEASED. JENNIE AMY, APPELLANT, v. ROYAL D. AMY AND OTHERS, APPELLANTS, v. ADELIA YOUNG AND OTHERS, RESPONDENTS. ^[1]

No. 602

Supreme Court of Utah

December 21, 1895

APPEAL from the District Court of the Third Judicial District. Hon S. A. Merritt, Judge.

In the matter of the estate of Oscar A. Amy, deceased. Petition of Jennie Amy, wife of the deceased, for the distribution of the entire estate to her. Royal D. Amy and others, half brothers and sisters of deceased, pray for distribution of the estate to them. Adelia Young and others, maternal aunts of descendent pray for the distribution of the estate to them representing that they were the sole heirs of deceased. From a judgment entered in favor of Adelia Young and others Jennie Amy and Royal D. Amy and others, prosecute separate appeals.

Reversed and remanded.

Mr. S P. Armstrong (Mr. W. H. Dickson of counsel), for Jennie Amy, appellant.

This case presents the following questions:

First--Is the Butterworth divorce valid?

If the divorce is held to be valid, then the further question arises as to whether one-half of the estate will go to Royal D. Amy et al., the half-brother and half-sisters of the decendent. Com. Laws, 1888, p. 123, §§ 2, 4.

If the divorce is held to be void then the further question arises as to whether the half-brother and half-sisters will inherit the whole estate or whether it will go to his maternal aunts, being next of kin in a more remote degree. Id. p. 123, §§ 3, 5.

Second--Is the mayor's deed conclusive as to the estate which Levira C. S. Amy held in said land?

If not, was the title derived from Dustin Amy of such nature as to bring it within the rule of ancestral estates, and thus allow the half-blood to inherit?

Our contention is:

First--That the decree of divorce is valid; and therefore Jennie Amy was lawfully married to decedent in 1886, and is now his legal widow.

Second--That the land was inherited by decedent from his mother and sister; and therefore the half-brother and half-sisters who are not of the blood of such ancestors will take no part of his estate.

Third--That he died without brother or sister of the full blood, and therefore capable of inheriting, and without issue, father or mother; and therefore that his whole estate goes to his widow, Jennie Amy. Com. Laws, p. 123, par. 4.

Presumptions are always in favor of a court of record, and jurisdiction will not be questioned collaterally unless there is some part of the record which contradicts the presumption. Applegate v. Lexington Mining Co., 117 U.S. 269; Van Fleet on Col. Attack, §§ 830-1; Harris v. Chipman, 9 Utah, 104; Roach v. Martin's Lessee, 27 Am. Dec. 756; Hahn v. Kelley, 34 Cal. 391; Skinner v. Moore, 30 Am. Dec. 158; Voorhees v. Bank, 10 Pet. 471-2.

Jurisdiction by constructive service is entitled to same presumptions as in the case of personal service. 1 Freeman on Judg. § 127; Van Fleet on Col. Attack, § 834; Essig v. Lower, 21 N.E. 1090-2; Stewart v. Anderson, 70 Tex. 592; Hahn v. Kelley, 34 Cal. 391-417; Applegate v. Lexington Mining Co., supra.

WHAT CONSTITUTES THE JUDGMENT ROLL?

Section 1428 (p. 457, Laws 1876), provides:

"Immediately after entering the judgment the clerk shall attach together and file the following papers, which shall constitute the judgment roll." The complaint, the summons, with the affidavit or proof of service, and a copy of the judgment.

It becomes important then to know what is meant by "affidavit or proof of service."

This provision was copied from California after the supreme court of that state had repeatedly held that "proof of service" does not include the affidavit or order. Sharp v. Dangney, 33 Cal. 512 (decided October, 1867); Hahn v. Kelley, 34 Cal. 404 (decided January, 1868); Quivey v. Porter, 37 Cal. 464 (decided April, 1869).

Hence the statute of Utah came to us pregnant of this construction, which construction is binding on the courts of Utah. Suth. Stat. Con. § 256.

By amendment, the affidavit and order of publication are now required to be made a part of the judgment roll in addition to the proof of service. Laws 1882, p. 78, § 25.

Later legislation is important as showing the legislative interpretation of earlier laws. Cope v. Cope, 137 U.S. 688.

Being no part of the record, the court will not look into the record to see whether the affidavit and order of publication were filed or not. They will not be considered when the judgment is attacked collaterally; and cannot be used for the purpose of overcoming the presumption of regularity. Harvey v. Tyler, 2 Wall, 344; Hall v. Law, 102 U.S. 463; Applegate v. Lexington Mining Co., 117 U.S. 269; Galpin v. Page, 1 Saw. 321; In re Newman, 75 Cal. 220. Also the California cases last above cited.

The rule that recitals in the decree are conclusive on collateral attack is further shown by the following authorities: 1. Black on Judg. §§ 273-4-287; 1. Freeman on Judg. §§ 126-130-2, 4 ed; Hall v. Law, 102 U.S. 464; Adams v. Cowls, 6 Am. St. Rep. 76 (Mo.); Kinney v. Lewis, 2 Utah, 517; Callen v. Ellison, 13 Ohio St. 454; Shawhan v. Loffer, 24 Iowa 226; Hahn v. Kelley, 34 Cal. 407.

Jennie Amy offered the complaint and the decree which contained the recital as to service. These in themselves were sufficient to establish the divorce; and they should have been admitted. In addition to this she offered a copy of the summons as published in the newspaper, the original not having been found among the files in said case. She also showed by testimony that a summons was issued, and that the defendant received the summons through the mails as well as six copies of said newspaper containing publication of summons in said case.

This evidence was admissible as showing that the steps pointed out by the statute were followed. Applegate v. Lexington Mining Co., supra, p. 268.

Even if the court in the case at bar could go outside of the judgment roll, and back of the finding of the probate court, "that said defendant was duly served with process by publication," for the purpose of considering the alleged irregularities in the service of summons, it would find that they are not such as to render the decree void. They are matters which can only, if at all, be attacked in a direct proceeding brought for that purpose.

The sufficiency of the affidavit for service of summons by publication was a matter to be determined by the court. Com. Laws 1876, p. 409, § 30.

And such determination is conclusive when attacked collaterally. Pennoyer v. Neff, 95 U.S. 721; Pettiford v. Zoellner, 45 Mich. 362.

The summons and order for publication which do not appear among the files are presumed to have been lost, and to have been regular in form. Freeman on Void Judgment Sales, § 8, p. 17; Hurley v. Barnard, 48 Tex. 83-87; Wilson v. Holt, 83 Ala. 540.

The sufficiency of the affidavit of the printer as to publication of summons cannot be questioned collaterally; for the statute of Utah provides that from the time service is had, the court acquires jurisdiction, and has control of all subsequent proceedings. Com. Laws 1876, p. 411, § 35.

It is the fact of service, not the proof which gives the court jurisdiction. Kipp v. Fullerton, 4 Minn. 480; Pierce v. Butlers, 21 Kans. 106; In re Newman, 75 Cal. 220; Fanning v. Krapfl, 68 Iowa 248.

The court has power to order amendment of proof of service. Freeman on Judg. § 127 (last paragraph).

Therefore the court must have jurisdiction of the cause.

COLLATERAL ATTACK IS NOT FAVORED.

Collateral attacks on judicial proceedings are never favored, and unless it is conclusively shown that the court had not jurisdiction, or that it transcended its jurisdiction, its judgment will be held to be valid. Head v. Daniels, 38 Kans. 12.

Particularly is this the rule where the equities of the case are all on the side of the party attempting to sustain the decree. When such is the case, a most liberal construction will be given in favor of the decree. Ogden v. Walters, 12 Kans. 235; Gunnell v. Rice, 13 Minn. 406.

The COURTS UPHOLD DECREES OP DIVORCE.

The subject-matter in suit for divorce is the status of the party domiciled within the jurisdiction of the court. 11 Bish. Marriage, D. & S., chap. VI., with note to § 152; 11 Black on Judg. §§ 925-931-2. As domicile is what confers jurisdiction in divorce, it matters not, in adjudicating the status, whether the defendant has notice of the proceedings or not, unless a notice is prescribed by statute. 2 Bish. M. D. & S. §§ 76-138-157; Maynard v. Hill, 125 U.S. 209; Pennoyer v. Neff, 95 U.S. 734. Thus the law makes a distinction between jurisdiction of the status, and jurisdiction of the party defendant; and even in the case of foreign judgments, while a recital in the record as to domicile is not conclusive, yet a recital as to service of notice is conclusive. 2 Bish. M. D. & S. § 184; Wallace v. Brown, 76 Am. Dec. 425 (Ark.) See also Borden v. State, 54 Am. Dec. 242. Hence, we find the decisions almost uniform in upholding decrees of divorce when the court had jurisdiction of the subject-matter, even though the service of process was very irregular. Pettiford v. Zoellner, supra. Butterworth himself could not question the validity of the divorce at this late day. Crosby v. Probate Court, 3 Utah, 52; Vorhees v. Bank, 10 Pet. 472.

By his second marriage and long acquiescence he has affirmed and validated the decree even if it were invalid when rendered. Reno on Non-Residents, p. 317-8; Loud v. Loud, 129 Mass. 18; Colton v. Rupert, 60 Mich. 329; Dunn v. Dunn, 4 Paige, 430; Singer v. Singer, 41 Barb. 140; Nichols v. Nichols, 25 N. J. Eq. 65.

By action brought within reasonable time he might have attacked the decree, only...