Atkins v. Atkins

• Decision Date: 01 July 1879
• Citation: 2 N.W. 466,9 Neb. 191
• Parties: HENRY ATKINS, PLAINTIFF IN ERROR, v. REBECCA ATKINS, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

2 N.W. 466

9 Neb. 191

HENRY ATKINS, PLAINTIFF IN ERROR, v. REBECCA ATKINS, DEFENDANT IN ERROR

Supreme Court of Nebraska

July 1, 1879

ERROR to the district court for Lancaster county. Tried below before POUND, J. The opinion states the case.

AFFIRMED.

Marquett & Courtnay, for plaintiff in error.

The motion to open up the judgment and decree under section 82 of the code of civil procedure, is overruled by the court; and the last motion filed is sustained, the court holding that the affidavit for publication of the summons was defective and that the court thereby had acquired no jurisdiction of the defendant. This amounts to an indirect or collateral attack on the judgment and decree originally rendered. This cannot be allowed by motion, for it gives the plaintiff no "day in court," no opportunity to be heard with evidence, and to cross-examine witnesses, etc. Such an attack must be by original bill in equity. Clark v Hotailing, 1 Neb. 436. Dorente v. Sullivan, 7 Cal., 279. The Bank v. Labitut, 1 Woods, 11. Fries v. Fries, 1 McArthur, 291. Claypool v Houston, 12 Kansas, 324. If the court had no jurisdiction the whole proceedings were void, and court had no power to rule the parties to plead or do anything beyond annulling the decree, and that not on motion, but only in a proper case in equity. Lickens v. McCormick, 39 Wis. 313. Durrah v. Watson, 36 Iowa 116. The most that can be said is that there was irregularity in the mode of service; but no advantage could be taken of that fact except by appeal or error. Forbes v. Hyde, 31 Cal. 342. Lessee of Fowler v. Whiteman, 2 Ohio St. 270. Wright v. Marsh, 2 G. Green (Iowa), 94. Stevenson v. Bonesteel, 30 Iowa 286. Shawhan v. Loffer, 24 Iowa 218. Myers v. Davis, 47 Iowa 325, and authorities there cited. Moomey v. Maas, 22 Iowa 308. Ballinger v. Tarbell, 16 Iowa 492. Whitewell v. Barbier, 7 Cal., 54. Beech v. Abbott, 6 Vt., 586. Matter v. Clark, 3 Denio, 167. The record shows that the matter of jurisdiction was considered and determined by the court, and a solemn decree of the court entered upon the record finding the fact of jurisdiction and of legal service of the summons by a proper publication according to law. This forever settles the question of service, excepting on review by appeal or error. Freeman on Judgments, Secs. 130 to 135 inclusive.

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

A court of equity, in case of a divorce obtained by publication and without actual notice, may, and should upon motion, annul its decree and admit defense. Adams v. Adams, 51 N.H. 338. Crouch v. Crouch, 30 Wis. 667. Brown v. Brown, 58 N.Y. 609. Young v. Young, 17 Minn. 181. Allen v. Maclellon, 12 Penn. St., 329. In cases of constructive service, if the statutory mode of vesting jurisdiction is not pursued, the judgment, though pronounced and entered of record, is a nullity, and want of jurisdiction may be availed of at any time before or after judgment however questioned in a direct or collateral proceeding. Wade on Notice, Section 1371. Knox v. Miller, 18 Wis. 397. Webster v. Reed, 11 How., 437. Rape v. Heaton, 9 Wis. 328. Northrup v. Shepherd, 23 Wis. 513. Senichka v. Lowe, 74 Ill. 274. Falkner v. Guild, 10 Wis. 563. Pollard v. Wagener, 13 Wis. 569. Jurgulewiz v. J., 24 La. Am., 77. Borden v. Fitch, 15 Johns., 141. Towsley v. McDonald, 32 Barb., 604. Riley v. Nichols, 1 Heisk, 16.

In notice by publication the affidavit for publication of service is jurisdictional, and before jurisdiction can be acquired such affidavit must be filed as brings the cause within the statutory requirements for this form of constructive service. The affidavit is the foundation of the jurisdiction and the means by which the court by this kind of service obtains jurisdiction. The affidavit must state the probatory facts of residence and of subject matter of the suit, not mere conclusions, or jurisdiction is not obtained. Wade on Notice, §§ 1033, 1035, 1042-3, 1371, 1379. Claypool v. Houston, 12 Kan. 324. The suit against an absent party is essentially ex parte, and at the least the plaintiff should strictly comply with the rules of procedure before judgment. McMinn v. Whelan, 27 Cal. 300. Edmington v. Allebrook, 21 Tex. 186. And if it appear by record (as in this case) that the court had never jurisdiction over the person of defendant to dissolve her status of marriage, the judgment will be pronounced a nullity, whether it comes directly or collaterally in question. Coit v. Haven, 30 Conn. 190. Penobs. R. R. Co. v. Weeks, 52 Me. 456. Hess v. Cole, 23 N.J.L. 116. Mills v. Dickson, 6 Rich. (S. C.), 487. If the necessary notice has not been given or process has not been served, the court has no authority to act, and all its proceedings are absolutely void. Goudy v. Hall, 30 Ill. 109. Wort v. Finley, 8 Blackf., 335. Downs v. Fuller, 2 Metc. (Mass.), 135. Outhwite v. Porter, 13 Mich. 533.

OPINION

MAXWELL, CH. J.

On the 8th 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 No. 77 of title V of the Revised Statutes of Nebraska as amended.

"HENRY ATKINS.

"Subscribed in my presence and sworn to before me this 8th 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, 2d judicial district, held in and for Lancaster county, Nebraska:

"Henry Atkins, Plff. v. Rebecca Atkins, Deft.

"To Rebecca Atkins, defendant: You will please take notice that on the 8th day of August, A. D. 1873, the said Henry Atkins, plaintiff, filed in the district court of the 2d judicial district, held in and for Lancaster county, Nebraska, his petition, charging that you have been willfully 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 you appear and answer his said petition on or before the third Monday after August 29, 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 15th of August, 1873. On the 6th 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 consideration 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 willfully 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, born to said parties during said marriage, be and the same is hereby given to the said petitioner, and the said defendant is forever enjoined from interfering with or disturbing said petitioner in the custody," etc.

On the 29th 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 6th 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 2d 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 conclusions 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 § 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 29th day of September, 1873.

Fifth, Because the notice does not notify the defendant that plaintiff's residence is in Lancaster county.

On the 21st day of June, 1878, the court rendered the following judgment:

"This matter coming on to be determined upon the motion heretofore first filed, to open the 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...