Holt v. Sather
| Decision Date | 04 February 1928 |
| Docket Number | 6228. |
| Citation | 264 P. 108,81 Mont. 442 |
| Parties | HOLT v. SATHER. |
| Court | Montana Supreme Court |
Rehearing Denied Feb. 18, 1928.
Appeal from District Court, Powder River County; S.D. McKinnon Judge.
Action by Stephen A. Holt, Jr., against Edna G. Sather for the annulment of an alleged void marriage. Judgment for plaintiff, and defendant appeals. Affirmed.
D. L O'Hern, of Miles City, for appellant.
Rudolph Nelstead, of Miles City, for respondent.
This is an action for annulment of an alleged void marriage between plaintiff and defendant. September 4, 1920, defendant and one Glenwell E. Sather intermarried. September 20, 1922, in the district court of Powder River county, the defendant herein filed an action for a divorce, upon the ground of desertion from her husband, Glenwell E. Sather. The defendant therein, Glenwell E. Sather, was a nonresident of Montana. Service on him was undertaken to be obtained by mailing to him copies of complaint and summons and by publication of summons in a weekly newspaper published at Broadus, county seat of Powder River county, and an alias summons was published therein four times. November 28, 1922, the default of the defendant in the action, for want of any appearance, was entered, and that day the judge, for the court, signed a paper designated "judgment and decree," purporting to grant the plaintiff in the action, this defendant, Edna G. Sather, a divorce from her husband, Glenwell E. Sather. Thereafter and on the 16th day of August, 1923, a marriage ceremony, purporting to unite in marriage plaintiff and defendant herein, was performed.
Plaintiff's complaint in this action alleges the foregoing narrated facts and further alleges that the above-mentioned Glenwell E. Sather is still living; also that the decree granted to this defendant, purporting to divorce her from her husband, Glenwell E. Sather, was and is void, for lack of jurisdiction in the court, and therefore the purported marriage between plaintiff and defendant was and is void. To the complaint, as a part thereof, is attached a copy of the judgment roll in the above-mentioned divorce action.
The complaint specifies four alleged defects in the judgment roll of the divorce action which it is alleged render void the decree granted therein, viz.: (1) The name of the plaintiff's attorney is not indorsed on the summons, as published; (2) the published summons does not contain a general statement of the nature of the action; (3) the summons, as published, is not dated; (4) proof of publication of the summons was made by the manager of the newspaper and not by the printer or his foreman or principal clerk.
To the complaint defendant demurred generally; also specially, upon the grounds of ambiguity, unintelligibility, and uncertainty. The demurrer was overruled as to the whole thereof.
Soon after appearing by demurrer and before the court's ruling thereon, defendant made application to the court for allowance of certain sums of money for attorney fee, suit money, and subsistence during pendency of the action, and, in support of her application, she served and filed an affidavit made by her. An order to show cause was made and a hearing was had, at which testimony was given. From the record and the briefs of counsel, it would appear the court ordered paid certain sums as attorney fee and suit money, which counsel for plaintiff claims were paid, and denied the application for allowance for subsistence pendente lite.
Thereafter and after the overruling of her demurrer, defendant answered. The answer admits substantially all of the allegations of fact of the complaint, and alleges that, at the time of the institution of the divorce action, the defendant therein, Glenwell E. Sather, resided at Blair, Wis., to which place, it alleges, copy of complaint and copy of summons in the divorce action, addressed to him, were mailed, and that, at that place, he received the copies and he thereby knew of the pendency of the divorce action. It denies that the divorce decree was or is void and denies that the marriage between plaintiff and defendant was or is void.
Thereafter the cause was tried to the court, without a jury. Testimony was heard and evidence was submitted on behalf of plaintiff. No evidence was offered on behalf of defendant. Thereupon the court rendered its decree, in favor of plaintiff and against defendant, adjudging void the marriage between plaintiff and defendant and annulling it.
Defendant appealed from the judgment and assigns two specifications of error: (1) That the court erred in overruling defendant's demurrer to the complaint; (2) that the court erred in denying defendant's application for alimony pendente lite and allowances for defending the action.
We shall first take up and dispose of the first specification. As to that specification, counsel for defendant contends that the decree of divorce granted defendant was valid. Counsel for plaintiff contends her decree was void by reason of each of the four grounds alleged in the complaint and which we have recited.
The specification is based on defendant's demurrer, general and special. By going to trial after the overruling of the demurrer, defendant waived the contention of her special demurrer; i. e., that the complaint is ambiguous, unintelligible, and uncertain. Pue v. Wheeler, 78 Mont. 516, 255 P. 1043. That leaves, to be considered, only her general demurrer. It raises the issue if the complaint states a cause of action.
We begin our consideration of that issue by taking up the first of the grounds advanced by counsel for plaintiff in his attack upon the divorce decree; i. e., omission from the published summons of the name of plaintiff's attorney. To clarify the situation, it is agreed by the counsel that this action is a collateral attack upon the divorce decree, and that, for the complaint to be upheld, the decree must be void and not voidable only. In that we concur. Furthermore, being a collateral attack, the validity or invalidity of the decree must be determined solely from the judgment roll. Burke v. Inter-State Savings & Loan Association, 25 Mont. 315, 64 P. 879, 87 Am. St. Rep. 416; State ex rel. Thompson v. District Court, 57 Mont. 432, 188 P. 902.
Therefore, proceeding on that basis, the immediate question before us is: Does the omission from a published summons of the name of plaintiff's attorney, under the circumstances here shown, render void, for want of jurisdiction of the person of defendant, a decree in the action? Of course, if rendered void, it must be for want of jurisdiction of the person.
Section 9107, Revised Codes 1921, in force now and at the time of the divorce action herein considered, provides how a summons must be issued and what it must contain and says it "must be substantially as follows." Then is set forth a form to be used. After that and in the same section is this provision: "The name of the plaintiff's attorney must be indorsed on the summons." Throughout the section the word "must" is used in setting forth its requirements.
In this case, the record shows that in the divorce action the name of the plaintiff's attorney was indorsed on the alias summons, issued for publication, but that, in the publication thereof, his name did not appear.
In an action at law or a suit in equity, in the absence of voluntary appearance of a defendant, a summons is the instrument by which the court obtains jurisdiction of the person of the defendant. The service of the summons is the method by which the court brings the defendant within its jurisdiction. Without jurisdiction, there cannot be a valid judgment. Without voluntary appearance or legal service of summons, jurisdiction is not acquired. 21 R. C. L. 1262.
In this state, as in most jurisdictions, two kinds of service of summons are known, personal and constructive. Personal service is that had upon a defendant, in person, within the state. Constructive service is had by publication of the summons, when the defendant is a nonresident or has departed from the state or cannot, after due diligence, be found within the state, or conceals himself to avoid service; and, if the place of residence of the defendant be known, by mailing to him, at his place of residence, a copy of the complaint and a copy of the summons, in addition to such publication. Sections 9117, 9118, Rev. Codes, 1921.
It is the settled judicial policy of this state that more accurate observance, with regard to compliance with provisions of the statutes, is required in constructive service than in personal service; also that less presumption in favor of jurisdiction of a court, upon rendition of judgment, is indulged in when the judgment is based upon constructive service than when based upon personal service. Burke v. Inter-State Savings & Loan Association, supra. In the divorce action under consideration, if the court acquired jurisdiction of the defendant therein, the decree granted is valid; if it did not, the decree is void.
For the purpose of analysis, the question being considered may be divided and restated aptly, we believe, in these two questions: (1) Is the requirement that the name of the plaintiff's attorney must be indorsed on the summons mandatory? (2) If mandatory, is it essential that it appear in the printed copy, as well as on the summons itself, when published, in a case of constructive service? If the requirement be mandatory, it is essential to jurisdiction. Sharman v. Huot, 20 Mont. 555, 52 P. 558, 63 Am. St Rep. 645; Duluth Brewing & Malting Co. v. Allen, 51 Mont. 89, 149 P. 494. At least it is so unless it be affirmatively shown there is no possibility of prejudice. State ex rel. Jerry v. District Court, 57 Mont. 328, 188 P. 365. If essential to jurisdiction it...
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