Eugene H. Perry v. Maud E. Perry

• Decision Date: 09 November 1920
• Citation: 111 A. 632,94 Vt. 487
• Parties: EUGENE H. PERRY v. MAUD E. PERRY
• Court: Vermont Supreme Court

111 A. 632

94 Vt. 487

EUGENE H. PERRY v. MAUD E. PERRY

Supreme Court of Vermont

November 9, 1920

October Term, 1920.

PETITION for divorce. Heard by Court at the June Term, 1920 Windsor County, Stanton, J., presiding. The libellee appeared specially by attorney, and moved to dismiss the petition upon the ground that said libellee was not cited to appear at any stated term of said court, and, for the further reason, that said citation or summons was too uncertain, doubtful, and indefinite. The motion was overruled, and the libellee allowed an exception.

Decree reversed, and libel dismissed.

Ira H. LaFleur (specially) for the libellee.

Charles Batchelder for the libellant.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

TAYLOR

The bill of exceptions raises a question as to the validity of the summons issued on a libel for divorce. January 3, 1920, the libellant preferred a petition to "the county court within and for the county of Windsor, holden at Woodstock in said county" praying for a bill of divorce. A summons was issued the next day by the clerk directing that the libellee be summoned "to appear before the county court within and for the county of Windsor at Woodstock in said county then and there to answer, " etc. Personal service of the libel and summons was made on the libellee in this State on January 20, 1920, and the case was entered in the court on January 27, 1920. May 25, 1920, the libellee entered a special appearance by attorney, and filed a motion to dismiss the libel on the ground that she was not cited to appear to any stated term of the court, and for the further reason that the summons was "too uncertain, doubtful and indefinite." The case came on for hearing at the June term, 1920, of said court; and, the motion to dismiss being overruled, the libellee was allowed an exception. Thereupon the cause was heard on the merits, the libellee not appearing to contest the libel, and a decree was entered for the libellant, but not to be issued pending a hearing in this Court on the libellee's exceptions.

There is nothing in the libel or summons to appraise the libellee of the time when she was required to appear. Manifestly the process is not in good form in this regard, but the controlling question is whether the irregularity is of such a character as not to give the court jurisdiction of the process. It is a rule of general application that if the court is without process it is without jurisdiction of the person or the subject-matter. Roy v. Phelps, 83 Vt. 174, 178, 75 A. 13.

The libellee relies upon the claim that the process in divorce proceedings is an original writ within the provisions of G. L. 1706, which requires that such writs shall set forth the time and place of appearance.; and it is argued that it is essential to validity that the summons should be framed with regard to the provisions of this statute. But this section of the statute does not apply to process in divorce proceedings. It was held in Shackett v. Shackett, 49 Vt. 195, that in such cases the procedure in this State is not subject to and ruled by the law and forms that prevail in common-law cases.

So far as applicable here, the requirements as to notice in divorce proceedings are found in G. L. 3569, which provides that a libel, with a summons to appear and answer thereto, shall be served upon the libellee in this State at least twelve days before the sitting of the court to which the same is returnable, by delivering to him a true and attested copy thereof. While the statute does not expressly require that the time and place of appearance shall be set forth in the summons, it does not follow that they can be omitted without invalidating the process. In the absence of an express provision of the statute, the common law must be resorted to in determining what is necessary to due process in such a summons. In re Allen, 82 Vt. 365, 73 A 1078, 26 L. R. A. (N. S.) 232. It is a fundamental rule in the administration of justice that sufficient notice and adequate opportunity to defend is essential to the jurisdiction of the court. Special importance is attached to notice in divorce proceedings in which the public has a vital interest. Actual notice to the libellee is required when possible, even when domiciled out of the State. G. L. 3569-3572. Considering the object of the notice it is evident that the...