OPINION
Jordan, J.
On
January 28, 1899, this proceeding was instituted by appellant
Thomas Day to have a decree of divorce granted to his wife,
Julia Day, set aside and vacated. Under his complaint he
sought to have the case as originally entitled, Julia Day v.
Thomas Day, redocketed in the lower court, and one Thomas C.
Nottingham, in his own proper person, together with Thomas C.
Nottingham and Mortimer Levering, administrators of the
estate of Julia Nottingham, formerly Julia Day, made parties
to his said action.
The
complaint is in four paragraphs. The first and second are
based on § 6 of our divorce statute, enacted in 1873,
being § 1042 Burns 1901. The first paragraph is as
follows: "Your petitioner, Thomas Day, respectfully
shows to the court that he is the defendant in the above
entitled cause, and that on the 2d day of March, 1854, he and
Julia Day, the plaintiff in the above entitled cause, were
duly married at the city of Lafayette, in said county and
State; that afterwards, on the 22d day of February, 1898,
and while the said Thomas Day and Julia Day
were husband and wife, the said Julia Day filed her complaint
in this court for a divorce from said Thomas Day on the
grounds of abandonment and failure to make reasonable
provision for her for a period of two years; that afterwards
such proceedings were had in such cause that by the judgment
of this court, rendered therein on the 28th day of April,
1898, it was adjudged that the bonds of matrimony then
existing between the said Julia Day and Thomas Day be
dissolved, annulled, and set aside, and that said Julia Day
be granted a divorce from said Thomas Day. Your petitioner
further avers that no summons was ever issued or served on
him in said cause; that he received no actual notice of the
pendency of said action in time to appear in court at the
time of the trial and object to said judgment; and that he
did not appear to said action, or at the trial thereof, and
had no notice or knowledge whatever of the bringing or
pendency of said action or the proceedings or judgment
therein until during the month of November, 1898;
that for many years prior to the commencement of said action
for divorce, and continuously therefrom up to the present
time, the said Thomas Day has resided at Shingle Springs, in
the state of California; that the only notice given or
attempted to be given of the pendency of said action for a
divorce was by publication in the Lafayette Call, a weekly
newspaper of general circulation, printed and published at
the city of Lafayette, in said county of Tippecanoe. Your
petitioner further avers that the complaint in said action
for divorce falsely charged that the said Thomas Day
abandoned said Julia Day and failed to make reasonable
provision for her for a period of two years, and upon that
ground alone said divorce was granted, when, in truth and in
fact, the said Thomas Day and Julia Day lived separately and
apart, each providing for their own wants by mutual consent
and agreement, until the spring of 1897, when they met at the
residence of said Thomas Day, at Shingle
Springs, in the state of California, and mutually agreed to
live together again as man and wife, and the said Julia Day
was at no time in need of nor did she ever ask assistance
from said Thomas Day, and that said charge of abandonment and
failure to provide as averred in said complaint for divorce
was false and untrue, as the said Julia Day well knew; and
that, if your petitioner had known of the pendency of said
action, he would have appeared and successfully defended said
action. Your petitioner further avers that said Julia Day
departed this life, intestate, on the day of August, 1898, at
Shelby county, in the state of Tennessee, leaving therein
personal property of the value of $ 500, and leaving in said
county of Tippecanoe personal property of the value of $
9,000 over and above all indebtedness; that she left
surviving her as her sole and only heir at law your
petitioner herein; that one Thomas C. Nottingham claims that
on or about the 14th day of May, 1898, he and the said Julia
Day were married, and that said Julia Day left her surviving
as her sole heir at law, him, the said Thomas C. Nottingham.
Your petitioner further shows to the court that the said
Thomas C. Nottingham was, on the day of September, 1898, by
the consideration of the probate court of Shelby county, in
the state of Tennessee, appointed administrator of the estate
of the said Julia Day, by the name of Julia Nottingham, and
that one Mortimer Levering was on the 30th day of November,
1898, by the consideration of the circuit court of said
Tippecanoe county, appointed administrator of the estate of
said Julia Day, by the name of Julia Nottingham, and that the
said Nottingham and said Levering are now the duly qualified
and acting administrators of her said estate. And your
petitioner further shows that the aforesaid Thomas C.
Nottingham and Thomas C. Nottingham, administrator as
aforesaid, now resides in said county of Shelby, in the state
of Tennessee; and that said Mortimer Levering, administrator
as aforesaid, resides in said county of
Tippecanoe in the State of Indiana. Wherefore your petitioner
prays that said action of Julia Day be redocketed, and that
said Thomas C. Nottingham, Thomas C. Nottingham,
administrator as aforesaid, and Mortimer Levering,
administrator as aforesaid, be made parties to this petition;
that the court fix the notice it deems proper to be given
said parties; and that the judgment of divorce granted to
said Julia Day, as aforesaid, be vacated and set aside, and
for all other proper relief."
The
second paragraph of the complaint contains substantially all
the averments of the first, and assails the jurisdiction of
the court in the divorce proceedings, on the ground that the
order for notice by publication was obtained upon a false
affidavit, by which knowledge to the defendant in the
aforesaid divorce suit was sought to be prevented by the
plaintiff therein, Julia Day.
The
third paragraph contains all of the allegations of the first,
except that no attempt is made to show a defense to the
action for divorce. This paragraph proceeds upon the theory
that the judgment in the divorce action is void for want of
jurisdiction, for the reason that the affidavit for
publication was made by the plaintiff in said action instead
of being sworn to by a disinterested person, and did not
state that the defendant was a nonresident of the State of
Indiana. No attempt appears to have been made to show by the
averments of this paragraph that appellant had a meritorious
defense to the action for divorce. This third paragraph,
also, among other things, sets out in full the affidavit as
to the defendant's residence, and the order of the court
that publication be made, and the finding and judgment of the
court therein, and avers that they were the only findings,
orders, and judgment of the court in said cause. This
paragraph also charges that the plaintiff did not at any time
file an affidavit stating the place of residence of the said
Thomas Day, if known, and, if unknown, so stating, as
required by § 1048 Burns 1901. The
affidavit as to the residence of the defendant in the said
divorce proceeding is set out in this paragraph as follows:
"State of Indiana, Tippecanoe County, ss.--In the
Superior Court. January Term, 1898. Julia Day v. Thomas Day.
Affidavit as to the residence of defendant. Julia Day,
plaintiff in the foregoing action, being duly sworn upon her
oath, says: That a cause of action exists against said
defendant Thomas Day; that the object of the action is to
obtain a divorce by the plaintiff from the defendant for the
reasons alleged in her petition filed in this action; that
the residence of said defendant Thomas Day, upon diligent
inquiry, is unknown to said plaintiff herein; and further
says not. Julia Day.
Subscribed and sworn to before me this 21st day of February,
1898. D. H. Flynn, clerk."
Upon
the filing of the aforesaid affidavit it is alleged that the
court entered the following finding and order, to wit
"And it appearing from said affidavit that the residence
of said defendant, upon diligent inquiry, is unknown to her,
the court thereupon orders that said cause be now docketed as
an action pending, and the clerk of this court give said
defendant notice of the pendency of this suit by publication
for three successive weeks in a weekly newspaper of general
circulation, printed and published in said county of
Tippecanoe, and State of Indiana, requiring said defendant to
be and appear in said court and make answer to the complaint
herein on or before Wednesday, the 27th day of April, 1898,
pursuant to the precipe indorsed thereon; and day is
given." That pursuant to said order of the court the
clerk of said court caused to be published in the Lafayette
Weekly Call, a newspaper of general circulation, printed and
published in the English language, in said county of
Tippecanoe, for three weeks successively, viz., February 26,
1898, March 5, 1898, and March 12, 1898, the following notice
of publication, to wit: Nonresident notice. State of Indiana,
Tippecanoe County, ss. In the Superior Court.
March term, 1898. 7230. Julia...
