Ensign v. Ensign

• Decision Date: 01 January 1891
• Citation: 45 Kan. 612,26 P. 7
• Parties: CAROLINE C. ENSIGN v. DANIEL ENSIGN
• Court: Kansas Supreme Court

26 P. 7

45 Kan. 612

CAROLINE C. ENSIGN v. DANIEL ENSIGN

Supreme Court of Kansas

January 1, 1891

Error from Johnson District Court.

THE opinion states the case.

Judgment Affirmed.

A Smith Devenney, for plaintiff in error.

John T Little, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

On August 16, 1886, Daniel Ensign instituted an action in the district court of Johnson county against Caroline C. Ensign his wife, to obtain a divorce, the custody of their child, and to have certain property decreed to him. For the purpose of making service by publication, and on the same day that the petition was filed, Daniel Ensign filed his affidavit, setting forth that service of summons could not be had upon the defendant within the county of Johnson or the state of Kansas. He then proceeded to make service by publication in a newspaper, and by the terms of the notice, which was duly published, the defendant was required to answer the petition on October 5, 1886. No copy of the petition nor of the publication notice was sent to the defendant at her place of residence within three days after the first publication of the notice was made. No attempt was made to take a decree at the January term, 1887, of the district court, but on January 24, the plaintiff below filed another affidavit, in which he stated that at the commencement of the action he had no knowledge of the post-office address of his wife or of her whereabouts, and had no knowledge of her post-office address or residence within three days after the first publication of notice, and that he could not ascertain her post-office address by any means within his control, and that for three months after the first publication was made he did not know and court not ascertain the post-office address of the defendant by any means within his control; and for these reasons he could not send a copy of the petition and notice to her. On February 17, 1887, he sent a copy of the petition and publication notice, addressed to her at Seattle, Washington territory; but the letter containing them was not called for at the Seattle office, and was returned to the sender on March 5, 1887. At the May term, 1887, the cause was tried, and a decree of divorce granted--no appearance being made by or on behalf of the defendant. On May 14, 1888, Caroline C. Ensign appeared and moved the court to vacate the judgment and decree, on...