Carr's Adm'r v. Carr

• Decision Date: 06 February 1892
• Citation: 18 S.W. 453,92 Ky. 552
• Parties: Carr's Adm'r v. Carr.
• Court: Kentucky Court of Appeals

18 S.W. 453

92 Ky. 552

Carr's Adm'r v. Carr.

Court of Appeals of Kentucky.

February 6, 1892

Appeal from circuit court, Trigg county.

"To be officially reported."

Action by Rhoda J. Carr against J. M. Carr's administrator and heirs for dower in deceased's estate. Judgment for plaintiff, and defendants appeal. Reversed.

Holt C.J.

November 12, 1888, J. M. Carr, living in Trigg county, sued his wife the appellee, Rhoda J. Carr, then living but two or three miles from him, but in the state of Tennessee, in the circuit court of his county for a divorce upon the ground of abandonment without cause. Being a non-resident, a warning order was made against her to appear at the next term of the court, beginning more than 60 days thereafter, to wit, on February 11, 1889, and an attorney was appointed to defend for her. He filed a report, and, the evidence for the plaintiff having been taken, the cause was submitted on February 19, 1889, resulting in a judgment of absolute divorce to the husband. He died in July, 1889. Although the appellee knew of the pendency of the suit, she remained silent until August 23, 1889, when she brought this action against his administrator and heirs, claiming that the judgment of divorce was void, and that she was therefore entitled to share in his estate as his widow. The lower court so held. By our statute a divorce bars all claim to dower. Gen. St. c. 52, art. 4. § 14. If, however, the judgment was void, it would not, of course, affect the marital rights of the appellee. She claims that she was compelled to the abandonment by the cruel treatment of J. M. Carr; that she was not before the court upon even constructive notice because the affidavit upon which the warning order was made was substantially defective, and therefore the order of warning was void; and, if this be not true, yet that the judgment of divorce was prematurely rendered. If the court granting the divorce had no jurisdiction, then, of course its action is void. What facts constitute a want of jurisdiction is, however, often a troublesome question. Civil Code, § 60, provides that the warning order and appointment of an attorney to defend is a constructive services. Section 58 provides, however, that the clerk of the court shall not make the warning order, except upon an affidavit of the plaintiff stating the non-residence of the defendant, and in what county he resides or may be found, and the name of the place wherein a post-office is kept nearest to the place where he resides or may be found, or stating the affiant's ignorance of these matters, so far as they are unknown to him. The affidavit upon which the warning order was made stated that the appellee resided in Stewart county Tenn., and was then absent from this state, but the name of her post-office was left blank. Did this omission render the judgment void for want of jurisdiction? An action against a non-resident upon constructive service is of an ex parte nature. The right to it is based...