Bohannan v. Bohannan

Citation167 N.E.2d 717,132 Ind.App. 504
Decision Date03 June 1960
Docket NumberNo. 19272,19272
PartiesJohn G. BOHANNAN, Appellant, v. Hazel BOHANNAN, Appellee.
CourtCourt of Appeals of Indiana

Hollowell & Hamill, Indianapolis, Ind., for appellant.

Prentice & Prentice, Dixon W. Prentice, Jeffersonville, for appellee.

COOPER, Judge.

This is an appeal from the Clark Circuit Court wherein the appellee brought an action for an absolute divorce from the appellant, alleging cruel and inhuman treatment. The complaint prayed also for the custody of certain minor children and alimony.

The record before us reveals that after trial the court rendered judgment for the appellee on her complaint, granting an absolute divorce, the custody of the minor children and alimony. Thereafter, within the time allowed, the appellant filed a proper motion for new trial, the said motion was overruled and, as the result of that ruling, this appeal followed.

The assigned error is the overruling of the appellant's motion for a new trial which averred, among other things, that the decision was not sustained by sufficient evidence and was contrary to law.

In support of the aforesaid averments, the appellant, in substance, urges that the court erred in rendering the particular judgment for divorce, custody and alimony because of the failure of the statutory proof as to the appellee's residence under § 3-1203, Burns', 1959 supplement, and, further, because of the failure of the statutory proof as to the appellee's residence under the statute the decision of the trial court was not sustained by sufficient evidence, and, therefore, contrary to law.

The appellant raises in this court for the first time the question of the trial court's jurisdiction to render the particular judgment the court rendered because of the lack of the mandatory proof as to the residence of the appellee by two resident householders, as required by § 3-1203, Burns', supra.

In 1 Freeman, Judgments (5th Ed.) 444, 445, § 226, we find:

'There are in general three jurisdictional elements in every valid judgment, namely, jurisdiction of the subject matter, jurisdiction of the person, and the power or authority to render the particular judgment.'

'This well-established doctrine that a judgment beyond the court's power is invalid, is not limited in its application to any particular kind of judgment nor is it peculiar to the judgment of any particular court. Irrespective of the character or dignity of the tribunal pronouncing the decision, whether of inferior, limited or superior general jurisdiction, it must confine its determination within the authority it possesses under the law and the case.' 1 Freeman, Judgments (5th Ed.), 735, § 354.

A review of authorities reveals that our Supreme Court follows the foregoing doctrine. Underhill v. Franz, 1951, 230 Ind. 165, 173, 101 N.E.2d 264; State ex rel. Public Service Comm. v. Marion Circuit Ct., 1951, 230 Ind. 277, 293, 100 N.E.2d 888, 103 N.E.2d 214; Witte v. Dowd, Warden, 1951, 230 Ind. 485, 102 N.E.2d 630.

It is the appellee's contention that under the authority of Sims v. Sims, 1957 (T.D.1958), 128 Ind.App. 408, 146 N.E.2d 111, it was incumbent upon the appellant to raise such jurisdictional question the first time in the trial court. A review of the Sims case, supra, reveals that our court in that case directly contravenes the holding of our Supreme Court in the case of Wedmore v. State, 1954, 233 Ind. 545, 549, 122 N.E.2d 1, 3, wherein the Supreme Court stated:

'When there is a lack of jurisdiction of the subject-matter in the trial court, the jurisdictional question may be raised at any time before final decision and in any manner and if not raised by a party it is our duty sua sponte to raise and determine it. State ex rel. Ayer v. Ewing, Judge, 1952, 231 Ind. 1, 10, 106 N.E.2d 441, and cases there cited.'

However, we need not discuss or decide this question now since this cause must be reversed for other error and such specific issue, we feel sure, will not recur in the re-trial. Flowers v. State, 1956, 236 Ind. 151, 170, 139 N.E.2d 185; Tribune-Star Publishing Co., Inc. v. Fortwendle, 1954, 124 Ind.App. 617, 115 N.E.2d 215, 116 N.E.2d 548.

Reviewing the pertinent part of said section of our statute, we find it provides, in part, the following 'Divorces may be decreed by the circuit, superior or other courts of this state upon which such jurisdiction has been or may be conferred on petition filed by either the wife or the husband, where at the time of the filing of such petition either the petitioner or her or his spouse, the defendant, is and shall have been a bona fide resident of the state for one (1) year previous to the filing of said petition and a bona fide resident of the county at the time and for six (6) months immediately preceding the filing of such petition, which bona fide residence shall be duly proven by such petitioner to the satisfaction of the court trying said petition by at least two (2) witnesses each of whom shall be either a resident householder or the wife of a resident householder of this state; provided however, * * *.'

Thus, it appears from the express provisions of the statute that (1) courts of competent jurisdiction may grant divorces on petitions of the husband or wife where at the time of the filing of the petition either of them, or the defendant is a bona fide resident of the state (Indiana) for a period of at least one year prior to said filing; (2) that the petitioner is a bona fide resident of the county at the time of the filing of the petition and has been for at least six months immediately preceding the filing of the petition; (3) that the bona fide residence of such petitioner shall be duly proven by the petitioner to the satisfaction of the court trying said petition by two witnesses, each of whom shall be a resident householder or the wife of a resident householder of this state.

We are bound by the general rule of law that a statute must be reasonably and fairly interpreted so as to give it efficient operation, and to give effect if possible to the expressed intent of the legislature. It should not be wantonly narrowed, limited or emasculated and rendered ineffective, absurd or nugatory. If possible it should be allowed to perform its intended mission as shown by the existing evils intended to be remedied. Balzer v. Waring, 1911, 176 Ind. 585, 590, 95 N.E. 257, 48 L.R.A.,N.S., 834; Walters v. Bank of America 1937, 9 Cal.2d 46, 52, 69 P.2d 839, 110 A.L.R. 1259, 1264; DeTarr v. State, 1906, 37 Ind.App. 323, 327, 76 N.E. 897; Perry Twp. of Marion County v. Indianapolis Power & Light Co., 1946, 224 Ind. 59, 69, 64 N.E.2d 296; Davis Coal Co. v. Polland, 1902, 158 Ind. 607, 617, 62 N.E. 492; Smith v. Indianapolis St. R. Co., 1902, 158 Ind. 425, 427, 63 N.E. 849. See also State v. Griffin, 1948, 226 Ind. 279, 284, 79 N.E.2d 537.

We are of the opinion that the foregoing phrase, 'to the satisfaction of the court', does not mean that he can dispense with the required statutory proof as to the resident requirements. The phrase, 'duly proven', means in a proper way, or regularly or according to law. Haverell Distributors v. Haverell Mfg. Corp., 1944 (T.D.1945), 115 Ind.App. 501, 507, 58 N.E.2d 372.

Our Supreme Court has said: 'Courts cannot act upon the assumption that a state of facts exists which has not been proved * * *.' Muncie Building Trades Council v. Umbarger, 1938, 215 Ind. 13, 16, 17 N.E.2d 828, 829.

The court must see that the requisite principle of proof has been observed and duly applied since such proof is mandatory. In reviewing the authorities, we find that both the Supreme Court and our court have held that the statutory proof of residence by at least two witnesses who are resident householders of the state is mandatory before judgment may be rendered for a party seeking a divorce under § 3-1203, Burns', supra. Wharton v. Wharton, 1941, 218 Ind. 345, 32 N.E.2d 695; Davidson v. Davidson, 1950, 120 Ind.App. 253, 90 N.E.2d 821, 91 N.E.2d 796; Adkins v. Adkins, 1947, 117 Ind.App. 189, 70 N.E.2d 750; Berghean v. Berghean, 1943, 113 Ind.App. 412, 48 N.E.2d 1001; Coulter v. Coulter, 1937, 103 Ind.App. 565 9 N.E.2d 141; Blauser v. Blauser, 1909 (T.D.1909), 44 Ind.App. 117, 87 N.E. 152.

The entire evidence of the proof of residence of the appellee in the record before us is as follows:

'Mr. Prentice: Your Honor, I would like to testify as a resident witness.

'The Court: All right.

'Mr. Prentice: My name is Dixon Prentice. I am a resident householder of Clark County, Indiana, and head of a family. I have been personally acquainted with Mr. and Mrs. Bohannan, the parties to this suit, for approximately ten years, and I know they have been bona fide residents of Clark County, Indiana, continuously for more than one year immediately prior to the date this suit was filed.'

We are of the opinion that the testimony of Mr. Prentice, who was the attorney of record for the plaintiff below, may be sufficient to meet the mandatory requirements of the statute; however, the testimony of the other resident witness, Mr. Smith, the attorney of record for the defendant below, being as follows:

'Mr. Homer Smith: Your Honor, I will testify to the same facts. I have known the Bohannan family for a number of years prior to the date this suit was filed, and I know they lived in Clark County all of that time.'

contains the same defects as were set out in the case of Brown v. Brown, 1894, 138 Ind. 257, 258, 37 N.E. 142, 143, wherein our Supreme Court said:

'Another witness, William Call, testified that he was a freeholder and householder, but his place of residence was not disclosed. These two witnesses, with others, not shown to have been either freeholders or householders, testified to the appellees' residence in the county and state the required period. The purpose of the statutory requirement that proof of residence shall be made 'by at least two witnesses who are resident freeholders and householders...

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