Hinkle v. Lovelace
| Citation | 102 S.W. 1015,204 Mo. 208 |
| Parties | LUCY M. HINKLE, Appellant, v. JONATHAN LOVELACE |
| Decision Date | 29 May 1907 |
| Court | United States State Supreme Court of Missouri |
Appeal from Jasper Circuit Court. -- Hon. J. D. Perkins, Judge.
Affirmed.
Thomas & Hackney for appellant.
(1) The petition for divorce was sworn to by plaintiff's stepfather, the defendant in this action, who was described in the caption of the petition as the next friend of plaintiff and who acted as such next friend in the divorce proceeding under appointment by the court in which the petition was filed. This was a sufficient compliance with the divorce statute requiring an affidavit to accompany the petition. In such cases it is proper for the next friend to make any affidavit necessary to be filed by plaintiff at the commencement, or during the progress, of the suit. Leftwick v. Hamilton, 9 Heisk. (Tenn.) 310; Deford v. State, 30 Md. 179; Strode v Clark, 12 Ala. 621; Wilson v. Me-ne-chas, 40 Kan. 648; Tripp v. Gifford, 155 Mass. 109; Raming v. Railroad, 157 Mo. 515; sec. 9, ch. 161, G S. 1865. The very purpose of the statute requiring an affidavit of the plaintiff in a divorce suit, to the effect that the action is not brought by collusion, is to protect the court from imposition and abuse of its jurisdiction and process, as well as for the protection of society; and the next friend in this divorce suit being the stepfather of the infant wife and familiar with all the facts pertaining to the marital relations between her and her then husband, Edmonds was a very proper person to be appointed by the court to act as next friend and institute and prosecute the suit in her behalf. (2) A divorce obtained on a petition stating the plaintiff's cause of action and to which there has been no affidavit annexed is not void, but is simply voidable and can not be attacked in a collateral proceeding. McCraney v. McCraney, 5 Iowa 254. (3) The defendant having accepted from the plaintiff and her husband, Daniel Hinkle, the two deeds to himself, of date January 27, 1868, and December 19, 1868, executed during the lifetime of Daniel Edmonds, each deed describing the plaintiff and said Daniel Hinkle as husband and wife, and having entered into possession of the lands in controversy under said deeds, and having claimed possession thereunder from the date of their execution, is estopped by the recitals in said deed from questioning the validity of plaintiff's divorce from her first husband, and from questioning the validity of plaintiff's second marriage. Orthwein v. Thomas, 127 Ill. 554; Pinckard v. Melmine, 76 Ill. 453; Thrower v. Wood, 53 Ga. 458; Dickson v. Anderson, 9 Mo. 156; Clamorgan v. Greene, 32 Mo. 285; Tyler v. Hall, 106 Mo. 319; Hasenritter v. Kirchhoffer, 79 Mo. 242; West Mo. Land Co. v. Railroad, 161 Mo. 604; Bradley v. Rappell, 133 Mo. 553.
McReynolds & Halliburton for respondent.
(1) Where constructive service is authorized instead of personal, there must be a strict compliance with the statutory requirements. Myers v. McRay, 114 Mo. 377; Parker v. Barton, 172 Mo. 85; Charles v. Morrow, 99 Mo. 646. (2) The petition in the divorce case alleges "that defendant is a non-resident of this State; or that he has absconded or absented himself from his usual place of abode in this State, so that the ordinary process of law cannot be served upon him." Which allegations are contradictory and did not authorize the publication issued against defendant. G. S. 1865, chap. 164, sec. 13, p. 655; Parker v. Burton, 172 Mo. 90; Harness v. Cravens, 126 Mo. 246; Tooker v. Leake, 146 Mo. 433; Dickenson v. Cooley, 15 Kan. 269; 2 Cyc. 22. (3) (a) The statutory affidavit to the original petition in the divorce case, being signed and sworn to by J. Lovelace as agent for plaintiff and the statute requiring such affidavit to be made by plaintiff, the court on said petition did not have jurisdiction to order publication or to decree divorce, as there was no authority in the statute for an agent or next friend to make the statutory affidavit. G. S. 1865, p. 460, ch. 114, sec. 2; Bryant v. Harding, 29 Mo. 347; Huthsing v. Mans, 36 Mo. 107; Norvell v. Porter, 62 Mo. 312; Quigley v. Bank, 80 Mo. 296; 2 Bishop, Marriage and Divorce (5 Ed.), sec. 306 A; Bank v. Tallman, 15 Wis. 92; Hadden v. Larned, 83 Ga. 636. (b) It is necessary, under a statute like the General Statute 1865, in order that the court may take jurisdiction, that all the requisites mentioned in the affidavit shall be set out and sworn to by plaintiff. 14 Cyc. 678; Brown v. Brown, 138 Ind. 257; Eastes v. Eastes, 79 Ind. 363; Stewart v. Stewart, 28 Ind.App. 378; Moore v. Moore, 130 N.C. 338; Nichols v. Nichols, 128 N.C. 108; Ladd v. Ladd, 121 N.C. 118. (c) The affidavit of absence of collusion and good faith is jurisdictional and the absence of the affidavit to that effect is fatal. Ayres v. Gartner, 90 Mich. 380; Hopkins v. Hopkins, 132 N.C. 22; Rayl v. Rayl (Tenn.), 64 S.W. 309; DeArmond v. DeArmond, 92 Tenn. 40. (d) An affidavit must be made, of course, by a person having knowledge of the facts. 2 Cyc. 5; Cheek v. James, 2 Heisk. (Tenn.) 170; Baker v. Knickerbocker, 25 Kan. 288. (e) Where a statute specifically points out who may make a certain affidavit, no one else can make it, or where it is prescribed by statute or rule of court that an affidavit shall be made by the party in person, no one else can make it. 2 Cyc. 5; Steinbach v. Leese, 27 Cal. 295; State v. County, 5 Nev. 317; Brown v. Walker, 8 N.Y.S. 59; Ex parte Aldrich, 1 Den. (N. Y.) 662; In re Heath, 40 Kan. 333; Ex parte Shumway, 4 Denio 258; Baker v. Knickerbocker, 25 Kan. 288. (f) Where it appears that an affiant could have had no personal knowledge as to the material allegations, the affidavit is defective. 5 Cyc. 24; Atchison v. Bartholow, 4 Kan. 124; Lewis v. Connelly, 29 Neb. 222; Gawtry v. Doane, 51 N.Y. 84; Dyer v. Flint, 21 Ill. 80; Neal v. Gordon, 60 Ga. 112; Ferris v. Bank, 158 Ill. 238; Hodgman v. Barker Co., 14 N.Y. 574; Cook v. De LaGarza, 13 Tex. 431; Campbell v. Hall, 1 Kan. 488. (g) The affidavit and jurat is part of the petition and if defective and not in compliance with the statute is fatal to the proceedings. Burnes v. Burnes, 61 Mo.App. 618; McQuillin, Pleading & Practice, sec. 295; Baryhydt v. Alexander, 59 Mo.App. 192. (h) The right to petition for divorce is a personal one; no one can file or maintain except the party; neither guardian or next friend can file or maintain action for an infant; she must make the statutory affidavit; guardian or next friend is not competent to do so. Richardson v. Richardson, 50 Vt. 119; 2 Bishop on Marriage & Divorce (6 Ed.), sec. 306 A; Besore v. Besore, 49 Ga. 378; Bradford v. Abend, 89 Ill. 78; Worthy v. Worthy, 36 Ga. 45; Mohler v. Shanks, 93 Iowa 273; Birdsell v. Birdsell, 33 Kan. 433; Winslow v. Winslow, 7 Mass. 96; Jones v. Jones, 18 Me. 308; Amos v. Amos, 4 N.J.Eq. 171; Tippel v. Tippel, 4 How. Prac. 346; Wright v. Wright, 3 Tex. 168; G. S. 1865, p. 460, sec. 1, chap. 114; p. 651, sec. 8, chap. 161.
OPINION
This is an action in ejectment, and the petition is in the usual form, instituted in the circuit court of Jasper county, whereby the plaintiff sought to recover the undivided one-half interest in and to certain real estate situated in said county, with damages for the detention thereof, and rents and profits.
The answer admitted the possession of certain portions of the land, and denied he had the possession of the remainder; that he had bought plaintiff's interest in the land, paying $ 300 therefor, and that he had expended money for improvements; that plaintiff had stood by and knew of defendant making improvements without objection and making no claim to the land; that she had not tendered back the purchase money nor paid for the improvements and taxes; and that she was estopped by her conduct from prosecuting her action.
Defendant pleaded the ten, twenty-four and thirty years' Statute of Limitations; and that plaintiff's marriage to Daniel Hinkle in 1867 was void; that her first husband, Daniel Edmonds, was alive at said time and did not die until some years afterwards; and that she was divorced from Daniel Hinkle in March, 1903.
The plaintiff's reply denied the allegations of the answer and further averred that at all the times mentioned in the answer she was a married woman and continued so until March, 1903.
It was admitted on the trial that Emberson Herold was the common source of title; that he died intestate in June, 1864, owning three hundred and twelve and one-half acres of land, of which the land in controversy is a part, and leaving surviving him as his heirs at law his six children, one of whom is the plaintiff; and that the value of the rents and profits of the land sued for is $ 2 per acre per year.
The record of a partition suit in the common pleas court of Jasper county was read in evidence, by which it appeared that in an action between part of the heirs of Emberson Herold, deceased, and the defendant and others, the defendant had claimed the one-sixth interest of plaintiff and also another one-sixth interest purchased by him from one of the other heirs, and that the land in controversy was set off to him as his two-sixths interest in the estate. The plaintiff was not a party to that suit.
It was shown by the plaintiff's testimony that plaintiff was born on June 7, 1850; had been twice married, first to Daniel Edmonds in the fall of 1865, and with whom she lived three months and was then divorced from him October 1, 1867; that she married Daniel Hinkle January 1, 1868, and continued as his wife until divorced from him June 22, 1903; that Daniel Edmonds died after plaintiff's marriage with Hinkle; that defendan...
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