Ashford v. Ashford

• Decision Date: 24 March 1954
• Parties: ASHFORD v. ASHFORD et al.
• Court: Oregon Supreme Court

Page 382

268 P.2d 382

201 Or. 206

ASHFORD v. ASHFORD et al.

Supreme Court of Oregon.

Argued and Submitted Feb. 3, 1954.

Decided March 24, 1954.

Wilber Henderson, Portland, argued the cause for appellant. On the brief were Henderson & Dickinson, Portland.

Joseph H. Page, Portland, argued the cause and filed a brief for respondent.

Before LATOURETTE, C. J., and LUSK, TOOZE and PERRY, JJ.

TOOZE, Justice.

This is an appeal by the plaintiff Francis N. Ashford from a decree of divorce entered against him in favor of the defendant Edna Mae Ashford.

Plaintiff and defendant were married at Portland, Oregon, on November 23, 1939. On May 8, 1946, plaintiff filed in the circuit court for Multnomah county a complaint in which he charged defendant with cruel and inhuman treatment and prayed for a decree of divorce. On August 11, 1946, plaintiff filed an amended complaint, and on May 8, 1947, a second amended complaint, in which he charged that his marriage to defendant was void becuase, as he alleged, at the time of such marriage 'the defendant had another husband, to-wit: one L. A. Mott, living and to whom she was legally married, and that the defendant's marriage with said Mott was then * * * in force and not dissolved or annulled by decree of divorce or otherwise; * * *', and he prayed for a decree declaring his marriage to defendant void.

By her amended answer, defendant admitted her marriage to L. A. Mott on August 7, 1929, but affirmatively alleged that such marriage had been dissolved by a decree of divorce entered in her favor and against said L. A. Mott by the circuit court for Multnomah county, Oregon, on January 11, 1939, and further, that said decree of divorce had never been vacated, modified, or set aside.

There is but one issue presented on this appeal, and that relates solely to the divorce decree entered in favor of defendant against her former husband, L. A. Mott.

In his brief filed in this court, plaintiff states the issue as follows:

'Since respondent admitted a previous marriage status, and relied upon a Divorce Decree as the basis of her eligibility for the second marriage, the question for the Court to decide is whether respondent did establish through that Decree and the records supporting the same a Decree of Divorce that was valid upon its face.'

The attack upon the divorce decree in this suit is a collateral, and not a direct, attack, and the decisive question in this case is whether, under the record, such decree is subject to a successful collateral attack.

Upon the trial of this cause, a duly certified copy of the entire record in the divorce suit of E. M. Mott (the defendant in the instant suit), as plaintiff, against L. A. Mott, as defendant, was offered and admitted as evidence.

The only defect in those proceedings that is relied upon by plaintiff in his attack upon the validity of the divorce decree is the alleged insufficiency of the affidavit filed in support of an order for publication of summons.

The complaint filed in the divorce suit states a good cause of suit; summons was duly issued and placed in the hands of the sheriff of Multnomah county for personal service upon the defendant Mott (with duly certified copy of the complaint); the sheriff returned said summons with his certificate endorsed thereon that 'after due and diligent search and inquiry, I hereby return that I have been unable to find the within named defendant, L. A. Mott within Multnomah County, Oregon'; upon the filing thereafter of an affidavit for publication of summons, the court made and entered of record its order for publication of summons and designated in said order the newspaper of general circulation in which such summons should be published, and the time for such publication, all as required by law, and summons was so published; upon the expiration of the time for defendant to answer the complaint, no answer having been filed, nor other appearance made by defendant, the default of defendant was duly entered of record, testimony was taken before the court, and, based thereon, a decree of divorce in favor of the plaintiff was duly entered of record.

Omitting formal parts, the affidavit for publication of summons reads as follows:

'I, E. M. Mott, being first duly sworn, depose and say: That I am the plaintiff herein and have personal knowledge of all the facts; that I am a resident of Portland, Multnomah County, Oregon; that I am a competent witness in all Courts of the State of Oregon; that the complaint in this suit was filed on the 15th day of November, 1938; that I have fully and fairly stated the facts of this case to my counsel and have been informed by him and I believe I have a good cause of suit against the defendant for divorce, as will fully appear from my verified complaint filed herein to which reference is hereby made, and the said defendant, L. A. Mott, is a necessary and proper defendant hereto as I have been advised by my said counsel after statements made as aforesaid.

'That after the complaint herein was filed, a legal summons was placed in the hands of the Sheriff of Multnomah County, Oregon, together with a duly verified copy thereof and together with a duly verified copy of the complaint, all duly certified to according to law, with directions to the said sheriff to serve the same upon the defendant and the necessary fees were paid to the sheriff to serve the same upon defendant; that the sheriff returned the same to the Clerk of the Court with his return endorsed thereon; that the defendant cannot be found in the City of Portland, or within the State of Oregon after due and diligent search and inquiry instituted for the purpose of locating him; that the defendant has no residence, place of abode, place of business, post office address of dwelling house, within my knowledge, in the State of Oregon; that the last known address of the said defendant was when he was living with me at 1934 N. E. 34th Avenue, Portland, Multnomah County, Oregon; that I have not been in communication with defendant for a period of about one year and that the positive place of residence of said defendant at the present time is unknown to me.

'That the defendant is a necessary party to this suit and this Court has jurisdiction over the subject matter of this suit and over the parties; that personal service cannot be made in the State of Oregon and I therefore pray for an order that service be made by publication; that the Sunday Welcome is a newspaper printed and published weekly in Portland, Oregon, and is of general circulation, and which I am advised, and therefore believe, is a paper in which legal notice of publication of service of summons may be made in this State.' (Italics ours.)

Based upon said affidavit and the return of the Multnomah county sheriff, the court entered of record the following Order for Publication of Summons (omitting formal parts):

'Upon reading and filing the affidavit of E. M. Mott, plaintiff herein, and it satisfactorily appearing to the Court that the defendant is not within the State of Oregon and cannot be found therein as appears from the return of the Sheriff, filed herein, and it appearing from the affidavit aforesaid that a good cause of suit exists in favor of the plaintiff and that said defendant is a necessary and proper party hereto, and it further appearing that a summons has been issued out of said Court in this suit, and that personal service of the same cannot be made upon the said defendant for the reasons hereinbefore contained and as by the affidavit is made to appear, Now, Therefore,

'On motion of Arthur B. Baines, plaintiff's attorney, it is Oredered that the service of the summons in this suit be made by the plaintiff by publication thereof, in the Sunday Welcome, a newspaper published in Portland, Oregon, hereby designated as the paper most likely to give notice to said defendant; that said publication be made at least once a week for four consecutive weeks, the date of the first publication to be the 26th day of November, 1938, and the date of the last publication to be the 24th day of December, 1938, and shall require said defendant to appear in answer to the complaint herein on or before the 27th day of December, 1938.

'And it further in like manner satisfactorily appearing to the Court that the last known address of the defendant was at the home of the plaintiff, but that the present address of the defendant is unknown and that it cannot be found, IT IS HEREBY ORDERED That the mailing of a copy of the original complaint and a copy of the original summons and a copy of the summons as published is hereby dispensed with.' (Italics ours.)

The proceedings for the publication of summons were based upon § 1-506, Oregon Code 1930, § 1-606, O.C.L.A., as amended by ch. 63, Oregon Laws 1947; ORS 15.120. This statute was made applicable to divorce suits by § 6-111, Oregon Code 1930, § 9-112, O.C.L.A.; ORS 15.130. In part, the statute provides:

'When service of the summons can not be made as prescribed in the last preceding section, and the defendant after due diligence can not be found within the state, and when that fact appears by affidavit to the satisfaction of the court or judge thereof, * * * and it also appears that cause of action exists against the defendant, * * * the court or judge thereof, * * * shall grant an order that the service be made by publication of a summons * * *.' (Italics ours.)

It is the well-established law of this state that in an affidavit for publication of summons every fact must be shown that is necessary under the statute to give the right to an order for service by publication. Probative facts must be stated, it not being sufficient merely to use the words of the statute. It is not sufficient to state generally that after due diligence the defendant cannot be found within the state, or that the plaintiff has a good cause of action against him, or that he is a necessary party; but the acts constituting due...