Emery v. Emery, 3395

• Decision Date: 09 August 1965
• Docket Number: No. 3395,3395
• Citation: 404 P.2d 745
• Parties: Elizabeth S. EMERY, Appellant (Plaintiff below), v. Charles W. EMERY, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 745

404 P.2d 745

Elizabeth S. EMERY, Appellant (Plaintiff below), v. Charles W. EMERY, Appellee (Defendant below).

No. 3395.

Supreme Court of Wyoming.

Aug. 9, 1965.

Carl L. Lathrop, of Lathrop, Lathrop, & Tilker, Cheyenne, for appellant.

William R. Buge, of Ross & Buge, Cheyenne, for appellee.

Before PARKER, C. J., and HARNSBERGER, GRAY, and McINTYRE, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

Elizabeth S. Emery brought an action in district court to vacate a decree of divorce granted to Charles W. Emery 22 months previously. From a judgment denying vacation Mrs. Emery has appealed.

One of the grounds assigned for vacating the decree is that proper service by publication was not obtained on Mrs. Emery as the defendant in the divorce action, and that the court thereby lacked jurisdiction to enter the decree.

Although counsel bases appellant's attack on the service in a claim that the husband was guilty of fraud in connection with his attempted service by publication, we need not adjudge him guilty of fraudulent intentions since the record shows a total lack of service--whether intentional or not--and the court therefore had no jurisdiction to grant the decree of divorce.

Rule 4(f), W.R.C.P., requires, 'Before service by publication can be made,' an affidavit must be filed stating, among other things, (1) defendant's address, if known, or (2) that defendant's address is unknown and cannot with reasonable diligence be ascertained. One of these alternative is essential before service by publication can be made.

The affidavit for service which was made and filed by Charles Emery did not state that defendant's address was unknown; neither did it state that such address cannot with reasonable diligence be ascertained. Moreover, the affidavit did not state what defendant's address is. It merely stated the last known address of defendant was 4610 Wisconsin Avenue, Chevy Chase, Maryland. This falls short of stating a present known address.

The record discloses that when a copy of the published notice was mailed to defendant-wife at 4610 Wisconsin Avenue, Chevy Chase, Maryland, it was returned by the post office marked 'NO SUCH STREET NUMBER.' This necessarily means the place given as an address was nonexistent, and affiant had not stated defendant's address, as the law requires.

The last paragraph of Rule 4(f) provides, in all cases in which defendant is served by publication of notice and there has been no delivery of the notice mailed by the clerk, the plaintiff or his agent or attorney, at the time of the hearing and prior to entry of judgment, shall make an affidavit stating: (1) the address of the defendant as then known to him; or (2) if unknown, that he has been unable to ascertain the same with the exercise of reasonable diligence.

The only purported compliance with the requirement for a second affidavit, in the instant case, was the filing of an instrument signed by Vincent A. Ross as attorney for plaintiff. It recites in part:

'Comes now plaintiff above named by and through his attorney Vincent Ross, and states that he has been unable to assertain [sic] the correct address of the defendant above named that with the excerise [sic] with or reasonable diligence. * * *'

Not only is the foregoing language so ambiguous and unintelligible as to be a nullity, but it indicates that the attorney is saying for plaintiff that 'he' (the plaintiff) has been unable to ascertain the correct address of the defendant. That is not what the rule requires. It requires an affidavit stating the address of defendant as then known to affiant, or if unknown, that affiant has been unable to ascertain the same with the exercise of reasonable diligence.

The purported second affidavit still stated the last known address of defendant is 4610 Wisconsin Avenue, Chevy Chase, Maryland. However, following this statement was a recital that notice mailed to such address was returned with 'no such address.' Under this situation, the instrument could not possibly be construed as stating the address of defendant as 'then known' to anybody. Also, as we have already pointed out, it cannot be construed as stating that the person making the affidavit has been unable to ascertain the address of defendant with the exercise of reasonable diligence.

The instrument filed as a second affidavit of service was not signed by plaintiff. At the end thereof is a blank line with the name 'Charles W. Emery, Plaintiff' typed beneath. The signing was 'By' Vincent A. Ross, Attorney for Plaintiff.

In State ex rel. State Board of Charities & Reform v. Bower, Wyo., 362 P.2d 814, 820, rehearing denied 363 P.2d 791, we said an affidavit which indicated that Wyoming State Hospital was being sworn was meaningless, because the affidavit was not made on the oath of anyone. Although the instrument in that case was signed before a notary public by an officer of the hospital, we further said there was at least some doubt if the officer whose signature was affixed could be successfully prosecuted for perjury if a false swearing were charged.

The same is even more true in the case at bar. Plaintiff did not make the affidavit in question, and he could not be prosecuted for false swearing. The attorney does not purport to swear for himself but only for his client. For any person to make an oath by proxy--'by and through his attorney'--is just as meaningless as it is for the Wyoming State Hospital to be sworn. See Park County ex rel. Park County Welfare Department v. Blackburn, Wyo., 394 P.2d 793, 795-796.

We recognize that the affidavit required under the last paragraph of Rule 4(f) can be made by plaintiff, or it can be made by his attorney. It cannot, however, be made by one for the other. Such an affidavit at best could only be made on information and belief, and we construe the rule to require positive verification.

Thus, the court lacked jurisdiction over Mrs. Emery when the divorce decree was entered for these reasons:

1. Because the affidavit made by plaintiff himself did not state defendant's address, which necessarily means correct address; neither did it state as an alternative that defendant's address was unknown and cannot with reasonable diligence be ascertained; and

2. Because the attorney's affidavit subsequently filed was meaningless and void and failed to verify positively that defendant's address was then unknown to affiant and that affiant had been unable to ascertain the same with the exercise of reasonable diligence.

In National Supply Company v. Chittim, Wyo., 387 P.2d 1010, 1011, we said the requirements of our rule pertaining to service by publication are minimum; that any omission of statements which are required under the rule are fatal; and that such omission prevents the trial court from securing jurisdiction of defendant. We need not review again the authorities cited for this holding. The holding applies equally well to the case now before us.

While counsel for appellant-wife has not urged the matter, we think we should call attention to the fact that the record presented to us discloses a further fatal defect in the service on Mrs. Emery. The proof of publication reflects that the last date of publication was July 18, 1961. According to the published notice, defendant was required to answer by August 16, 1961. Consequently, only 29 days were allowed for answer following the last day of publication, instead of 30 days as provided for by Rule 12(a), W.R.C.P.

This exact situation was present in National Supply Company v. Chittim, supra, and we there held the defect fatal to the jurisdiction of the court. See at 387 P.2d 1012.

Appellee argues that appellant brought her action for vacation under §§ 1-325 and 1-328, W.S.1957, alleging fraud pursuant to § 1-325(4), W.S.1957; that § 1-328 requires a showing as to what defense, if any, applicant has to the original action; and that applicant failed to make such a showing. This argument is not good because statutes pertaining to the modification and vacation of judgments after term are intended to apply to judgments having some degree of validity.

There is nothing in these statutes which purports to or which could breathe validity into a judgment which is wholly void on account of being entered in the absence of jurisdiction over the defendant. In Wunnicke v. Leith, 61 Wyo. 191, 157 P.2d 274, 277, this court said a judgment which is wholly void is in legal effect a nullity; and consequently, no showing of merits is necessary in support of an application to have it vacated.

According to § 1-325, authority is given for the district court to 'vacate or modify' its own judgment. Modification would necessarily require consideration of applicant's defense, and there is good reason for provisions relating to such defense, even when fraud is involved. But when it is sought to vacate a judgment wholly void for lack of jurisdiction, such provisions are irrelevant.

As stated in 30A Am.Jur., § 693, p. 659, the power of a court to vacate a void judgment is regarded as inherent and independent of any statutory authority. In the same text, on page 658, it is indicated that even though a void judgment is a nullity, a court will not permit it to encumber the record and will vacate the ineffectual entry thereof on proper application at any time. Also, in 49 C.J.S. Judgments § 267, pp. 480-481, it is said under or apart from statutory provisions, invalidity of a judgment void for want of jurisdiction, as distinguished from a judgment merely voidable or erroneous, is ground for vacating it--at least if such invalidity is apparent on the face of the record.

We think the correct rule is as stated in 3 Barron & Holtzoff, § 1327, p. 412 (1958). In discussing relief against a judgment that is void, under Federal Rule 60(b)(4), it is said when the judgment is void there is no question of discretion on the part of the court; either the judgment is void or it is valid; and when the...