Atkins v. Atkins

• Decision Date: 30 September 1879
• Parties: HENRY ATKINS, PLAINTIFF IN ERROR, v. REBECCA ATKINS, DEFENDANT IN ERROR.
• Court: Nebraska Supreme Court

9 Neb. 191

2 N.W. 466

HENRY ATKINS, PLAINTIFF IN ERROR,

v.REBECCA ATKINS, DEFENDANT IN ERROR.

Supreme Court of Nebraska.

Filed September, 1879.

Error from the district court for Lancaster county.Marquett & Courtnay, for plaintiff in error.

J. H. Foxworthy and J. R. Webster, for defendant in error.

MAXWELL, C. J.

On the eighth day of August, 1873, the plaintiff filed a petition for a divorce from the defendant in the district court of Lancaster county, and on the same day filed the following affidavit to obtain service by publication:

“ State of Nebraska, Lancaster county--ss: Henry Atkins, being first duly sworn, on oath, says: That he is the plaintiff in the above entitled action; that service of summons cannot be made within this state on the defendant, Rebecca Atkins, on whom service by publication is desired, and that this cause is one mentioned in section 77, title 5, Rev. St. of Nebraska, as amended.

HENRY ATKINS.

Subscribed in my presence and sworn to before me this eighth day of August, 1873.

C. J. GREENE, Justice of the Peace.”

Upon filing the affidavit the plaintiff caused the following notice to be published:

“LEGAL NOTICE.

“ In the District Court, Second Judicial District, held in and for Lancaster county, Nebraska.

“HENRY ATKINS, Plaintiff, vs. REBECCA ATKINS, Defendant.

“ To Rebecca Atkins, Defendant: You will please take notice that on the eighth day of August, A. D. 1873, the said Henry Atkins, plaintiff, filed in the district court of the second judicial district, held in and for Lancaster county, Nebraska, his petition charging that you have been wilfully absent from him for more than two years last past, and praying that the bonds of matrimony now existing between you and him may be dissolved, and that the care and custody of your child ‘Martha Irene’ may be awarded to him, and for such other and further relief as in equity and good conscience he may be entitled to. You are further notified that unless that you appear and answer his said petition on or before the third Monday after August 29th, his said petition will be taken as true, and the relief prayed for granted.

“HENRY ATKINS,” etc.

The first publication of the notice was on the fifteenth day of August, 1873. On the sixth day of November, 1873, the following decree was entered in the district court: “Thereupon this cause came on for hearing upon the petition and testimony, and was argued by counsel, on consideratino whereof the court does find that due notice of the filing and pendency of this petition was given to the said defendant according to law. And the court doth further find that the said defendant has been wilfully absent from the said petitioner more than three years last past prior to the filing of said petition. It is therefore adjudged and decreed that the marriage relation heretofore existing between the said parties be and the same is hereby set aside and wholly annulled, and the said parties wholly released from the obligation of the same; and it is further ordered that the custody, nurture, education, and care of the child, Martha Irene, be and the same is hereby given to said petitioner, and the said defendant is forever enjoined from interfering with or disturbing said petitioner in the custody,” etc. On the twenth-ninth of May, 1878, the defendant filed the following motion in said court:

“ Henry Atkins v. Rebecca Atkins.

MOTION.

And now comes the defendant and moves the court to vacate, open and set aside the judgment herein rendered on the sixth day of November, A. D. 1873, upon the ground that judgment was rendered without other service than by publication in a newspaper, and during the pendency of the action defendant had no actual notice in time to appear and defend, and applicant now files her answer and affidavit herein, as by law required.”

The defendant, at the time of filing the above motion, also filed an answer to the plaintiff's petition and an affidavit duly verifying the same. On the second day of June, 1878, the defendant filed a supplemental motion, alleging that the service by publication was not sufficient to give the court jurisdiction, because-- First, the affidavit for publication does not show any fact, but a conclusion of law only, because it does not set forth that the defendant is a non-resident of the state of Nebraska, or had departed therefrom, etc.; second, because the cause of action set forth in the affidavit is not one provided for by section 77 of the Code; third, the notice did not notify the defendant when to appear and answer; fourth, because the defendant could not have been required to answer before the twenty-ninth day of September, 1873; fifth, because the notice does not notify the defendant that plaintiff's residence is in Lancaster county.

On the twenty-first day of June, 1878, the court rendered the following judgment: “This matter coming on to be determined upon the motion heretofore filed to open judgment herein, appearing to have been rendered and entered of record, because that service was had by publication within five years next prior to the filing of said motion; and that defendant had no notice of these proceedings prior to the rendition of the decree herein; and also to be determined upon the motion of the defendant, as amended and enlarged, as subsequently filed; and the court finds the facts to be that the defendant had no notice or actual knowledge of the finding of this suit in time to appear and defend thereto, or yet prior to the sixth day of November, A. D. 1873, the date of decree. But the court further finds, as a conclusion of law, that section 82 of the Code of Civil Procedure does not apply to proceedings of divorce, and that the court has no jurisdiction to open or annul the decree upon that ground. * * The court finds upon the record that there has never been jurisdiction acquired by the court of the subject-matter or the person, or marriage status of the defendant, to render such decree, because of the defect of an affidavit for service by publication, as well as the insufficient publication of the notice; and that no decree or judgment, in any way concluding or affecting the rights of the defendant, has been made with any jurisdiction so to do; and that the decree herein entered of record ought not to be or remain of record, or held to be valid. And, thereupon, the motion of the defendant, as amended and last filed, is sustained, and the decree and judgment herein recorded and entered the eighth day of November, A. D. 1873, is annulled, set aside, and ordered to be cancelled and held for naught.”

The plaintiff brings the cause into this court by petition in error, the defendant filing a cross-petition in error.

The first question presented is the jurisdiction of the court rendering the decree of divorce. Section 10 of the chapter on divorce and alimony (Gen. St. 346) provides that “a petition for divorce, alimony, and maintenance may be exhibited by a wife in her own name as well as a husband; and in all cases the respondent may answer such petition without oath; and in all cases of divorce, alimony, and maintenance, where personal service cannot be had, service by publication may be made as provided by law in...