Brown v. Brown
| Decision Date | 19 April 1894 |
| Docket Number | 16,729 |
| Citation | 37 N.E. 142,138 Ind. 257 |
| Parties | Brown v. Brown |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled June 21, '94.
From the Putnam Circuit Court.
Judgment is reversed, with instructions to sustain motion for a new trial.
H. H Mathias and S. A. Hays, for appellant.
P. O Colliver, for appellee.
The appellee sued for, and obtained, a decree of divorce and the custody of her infant child.
In this court the appellant denies the jurisdiction of the circuit court, from the fact that the affidavit of residence and occupation, as required by section 1031, R. S. 1881, section 1043, R. S. 1894, was sworn to before a justice of the peace and not before the clerk of said court.
The provision of the statute that such affidavit shall be sworn to before the clerk of the court in which the complaint is filed, was, in effect, held by this court in the case of Eastes v. Eastes, 79 Ind. 363, to be directory merely, and since that decision the universal practice has been to take such oath before any officer of the State authorized to administer oaths.
The appellant's demurrer to the complaint was overruled, and it is claimed that this ruling was erroneous. Some of the allegations are quite general, and, upon motion, would have been made more specific; others, especially a charge of an assault and battery and the drawing upon and threatening to kill the appellee with a knife are acts of cruelty specifically pleaded, and, with an allegation of the clandestine removal of the two year old child of the parties from appellee's custody to the State of Iowa, are sufficiently definite.
Considering the failure to ask that general allegations be made specific, and taking such facts as admitted by the demurrer, we can not say that they were insufficient to constitute a cause of action.
It is insisted that the proof of residence in the county for six months and in the State for two years immediately preceding the filing of the petition was not made upon the trial by two witnesses who were "resident freeholders and householders of the State," as required by said section 1031, R. S. 1881; section 1043, R. S. 1894.
One witness, Archibald Allen, testified to his residence at "Bainbridge, Monroe township," and that he was a freeholder and householder. If we may presume that "Bainbridge, Monroe township," is in Indiana, this witness was one meeting the requirements of the statute. Another witness, William Call,...
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