Cordray v. Cordray
| Citation | 91 P. 781,19 Okla. 36,1907 OK 74 |
| Parties | CORDRAY v. CORDRAY. |
| Decision Date | 04 September 1907 |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where publication is relied on and jurisdiction is sought to be obtained of the defendant in an action by publication service alone, the affidavit for publication, as well as the publication notice, are matters jurisdictional, and, in order to obtain jurisdiction of the defendant in such case, both the affidavit for publication and the publication notice must comply with the provisions of the statute.
An affidavit in an action for divorce, as a basis for service for publication, in the following form: "Salia M Cordray, being first duly sworn, upon oath says that she is the plaintiff in the above-entitled cause, and that defendant, J. W. Cordray, is not a resident of the territory but to the best of her knowledge and belief is a resident of _____, and that service of summons in this case cannot be had upon the said defendant in the territory of Oklahoma"-does not comply with the provisions of the statute, and a judgment rendered in such case is void for want of jurisdiction over the defendant.
[Ed Note.-For cases in point, see Cent. Dig. vol. 17, Divorce, § 261.]
Such affidavit is defective, first, in that it fails to state what, if any, diligence, was used to procure personal service of summons upon the defendant; second, in that it fails to state the nature of the action; third, that it fails to state that at the time of the making of the affidavit the defendant was out of the territory of Oklahoma.
Error from District Court, Canadian County; before Justice Clinton F. Irwin.
Action by Salia M. Cordray against J. W. Cordray. Judgment for plaintiff. Defendant brings error. Reversed.
Glitsch, Morgan & Glitsch, for defendant in error.
This action was originally brought in the district court of Canadian county on November 12, 1902, by the defendant in error against the plaintiff in error, for divorce. On the day that the action was commenced, the plaintiff filed her affidavit for service by publication. Publication service was made by publishing the notice in a newspaper. The case was heard on the 23d day of February, 1903, the defendant making no appearance. The plaintiff was granted a decree of divorce and the custody of two minor children. The case remained in this condition until the 25th day of April, 1905, when the plaintiff in error appeared specially and filed his motion to vacate the judgment and decree of the court, for the reason, principally, that the court was without jurisdiction of the person of the defendant, because of the defects in the service. This motion was heard on the 13th day of December, and the motion denied. The appeal is taken from the order refusing to vacate the judgment.
The contention of the plaintiff in error is that the judgment and decree granting the divorce and custody of the children is a nullity. The principal question presented and argued by plaintiff is that arising out of the affidavit for publication. This affidavit reads as follows:
It is claimed that this affidavit is so defective and deficient that the court did not obtain jurisdiction of the defendant in this case. It is not seriously contended by the defendant in error that the affidavit is perfect, but it is claimed that it is not void, and, at most, only voidable. Where publication service is relied on, and jurisdiction is sought to be obtained of the defendant in an action by publication service alone, the affidavit for publication, as well as the publication notice, are matters jurisdictional, and, in order to obtain jurisdiction of the defendant in such case, both the affidavit for publication and the publication notice must comply with the provisions of the statute. Section 4276, Wilson's Rev. & Ann. St. 1903, provides that service may be made by publication in an action brought to obtain a divorce where the defendant resides out of the territory. Section 4377 also provides that, before service may be made by publication, an affidavit must be filed, stating that the plaintiff with due diligence is unable to make service of summons upon the defendant or defendants to be served by publication, and showing that the case is one of those mentioned in the preceding section. When such affidavit is filed, the party may proceed to make service by publication. It will be seen at a glance that this affidavit is defective; that it does not fully comply with the statute upon the subject. If it is so far defective as to not give jurisdiction of the defendant, it is void, and not voidable merely. If, however, it is only so defective as to be voidable, and not void, then the court obtained jurisdiction.
It is contended, however, that it is not only voidable, but void first, for the reason that it fails to state that due diligence was used to procure personal service of summons upon the defendant; second, for the reason that it fails to state that the case was one of those mentioned in section 4276; third, that it fails to state that at the time of making the affidavit the defendant was out of the territory of Oklahoma. The affidavit is certainly defective in each of the provisions contended for. There is no statement whatever as to diligence used, much less any statement of facts showing diligence in attempting to obtain personal service, nor is there any statement whatever as to the nature of the action for which publication service was attempted to be had. While the affidavit states that, to the best of the knowledge and belief of the plaintiff, the defendant is a resident of _____, and that service of summons in this case cannot be had upon the defendant in the territory, there is no showing that the...
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