Klepfer v. Klepfer

• Decision Date: 30 October 1930
• Docket Number: 25,916
• Citation: 173 N.E. 232,204 Ind. 301
• Parties: Klepfer v. Klepfer
• Court: Indiana Supreme Court

173 N.E. 232

204 Ind. 301

Klepfer v. Klepfer

No. 25,916

Supreme Court of Indiana

October 30, 1930

Rehearing Denied January 2, 1933, Reported at: 204 Ind. 301 at 303.

1. DIVORCE---Plaintiff's Residence Affidavit---May be Made before Notary Public.---Notwithstanding the express requirement of the statute that plaintiff's affidavit of his residence "shall be sworn to before the clerk of the court in which the complaint is filed" (1097 Burns 1926), it has been held that the execution of the affidavit before a notary public is a sufficient compliance with the statute. p. 303.

2. DIVORCE---Plaintiff's Residence Affidavit---Made Thirty-two Days before Complaint was Filed---Held Insufficient.---Plaintiff's affidavit of his residence made 32 days before the filing of his complaint is insufficient, as it fails to account for his residence for a period of more than a month, during which time he may have changed his residence. p. 303.

3. DIVORCE---Plaintiff's Residence Affidavit---Legislative Intent of the Law Requiring it.---The legislative intent of the provision of the divorce statute requiring the plaintiff to file with his complaint an affidavit stating the length of time he had been a resident of the state and stating "particularly the place, town, city or township in which he has resided for the last two years past" (1097 Burns 1926) was to limit the operation of the law to bona fide residents and to prevent non-residents from imposing on the courts. p. 303.

4. DIVORCE---Plaintiff's Residence Affidavit---Substantial Compliance with Statute is Sufficient But is Required.---Only a substantial compliance with the statute requiring an affidavit of plaintiff's place of residence in the state for two years is necessary, but a substantial compliance is required. p. 303.

5. DIVORCE---Plaintiff's Residence Affidavit---Statutory Provision Mandatory---Failure to File---Reversible Error.---The requirement of section 1097 Burns 1926, that an affidavit concerning plaintiff's residence be filed with every complaint for divorce is mandatory, and failure to file the same is reversible error. pp. 303, 304.

6. DIVORCE---Plaintiff's Residence Affidavit---Does Not Affect Jurisdiction---Former Decisions Modified.---A failure to substantially comply with the statutory requirement concerning plaintiff's affidavit of residence in divorce cases does not deprive the court of jurisdiction, and Smith v. Smith (1916), 186 Ind. 75, 113 N.E. 296, 297, and following decisions so holding are, to that extent, modified p. 304.

7. DIVORCE---Plaintiff's Residence---Evidence Held Insufficient.---Where plaintiff's complaint for divorce was filed January 15,

1929, and plaintiff testified he lived with his mother in another county, having gone there around the holidays, Christmas time (1928), and his residence witnesses failed to account for his residence after Christmas time in 1928, the evidence was held insufficient to meet the resident requirements of 1097 Burns 1926. p. 305.

From Marion Superior Court; J. W. Milner, Judge.

Suit for divorce by Ross Klepfer against Juanita Klepfer. From a judgment for plaintiff, the defendant appealed. Transferred from the Appellate Court under § 1351 Burns 1926.

Reversed.

Donald R. French, for appellant.

Shively Gilmer & Arnold, amici curiae.

Martin J. Jravis, J., dissents.

OPINION

Martin, J.

Appellee brought this action to obtain a divorce from appellant. The petition was answered by a general denial, trial was had and a judgment was rendered granting appellee a divorce, from which this appeal was taken. Among the errors relied upon is the assignment that the court had no jurisdiction over the subject matter of the action.

With the petition or complaint, which was filed January 15, 1929, appellee filed an affidavit concerning his residence and occupation. This affidavit was in the form required by statute (§ 7, ch. 43, Acts 1873, § 1097 Burns 1926), and was sworn to before a notary public, but the date it was sworn to, December 14, 1928, was thirty-two days before the complaint was filed. The statute provides that such affidavit shall "state the length of time he has been a resident of the state, stating particularly the place, town, city or township in which he has resided for the last two years past, and stating his occupation, which shall be sworn to before the clerk of the court in which said complaint is filed.

It has been held that the execution of an affidavit before a notary public, instead of before the clerk of the court, is a...