Leathers v. Stewart

• Decision Date: 03 March 1911
• Citation: 108 Me. 96,79 A. 16
• Parties: LEATHERS v. STEWART.
• Court: Maine Supreme Court

79 A. 16

108 Me. 96

LEATHERS

v. STEWART.

Supreme Judicial Court of Maine.

March 3, 1911.

Syllabus by the Court.

Exceptions from Supreme Judicial Court, Somerset County.

Petition by Frances Leathers against Elizabeth Smith Stewart for annulment of a decree of divorce made on the libel of petitioner's husband. Decree of annulment, and defendant brings exceptions. Exceptions overruled.

Argued before WHITEHOUSE, SAVAGE, SPEAR, KING, and BIRD, JJ.

Gould & Lawrence, for plaintiff.

David D. Stewart, for defendant.

SAVAGE, J. This is a petition for the annulment of a decree of divorce, which was made in this state in 1894, on the libel of the petitioner's husband, Llewellyn L Leathers. The material allegations, so far as it is necessary to notice them, are, in substance, that the petitioner was never served with personal notice of the pendency of the libel, and had no knowledge thereof until after the divorce was decreed; that her husband falsely and fraudulently alleged in his libel, under oath, that he had made inquiries and could not by reasonable diligence ascertain the residence of the libelee, the present petitioner, and that her residence was unknown to him, that thereupon constructive notice by publication was ordered and given, that by reason of the false and fraudulent allegations as to residence, the court did not acquire jurisdiction to decree a divorce as against the petitioner; and that the decree was. and is. null and void. It is also alleged that after the decree was entered a marriage ceremony was performed between Leathers and the respondent who was then Elizabeth Smith, and that subsequently Leathers died, in 1903. The petition is dated November 4, 1909.

After due notice the respondent appeared and filed an answer to the petition. After a hearing the presiding justice made the following findings of fact and rulings in law:

"The petitioner was married to one Llewellyn L. Leathers in 1861 in Minneapolis, Minn., and lived there with him until May 16, 1891, when he left her and came to St. Albans, Me., leaving her at Minneapolis in the house where they were then living. Mr. Leathers, the husband, filed in the Supreme Judicial Court for Somerset county, at the September term, 1894, a libel, dated August 9, 1894, for divorce from the petitioner, Prances, alleging cruel and abusive treatment as a cause. In the libel Mr. Leathers alleged on oath that the residence of his wife, Frances, was unknown to him, that he had made inquiries, and could not by reasonable diligence ascertain her residence. Upon this libel and allegation he obtained an order of notice upon his wife by publication in the Pittsfield Advertiser, a local paper of limited circulation. At the following December term, 1894, the notice by publication was proved as ordered, a hearing had, and a decree of divorce made and entered. No other notice was attempted to be given, and the wife had no notice whatever of the libel and decree until some years afterward, in 1897 or 1898.

"Mr. Leathers' said allegation as to the residence of his wife was false, and was made for the purpose of preventing his wife having any notice of the libel. He did know his wife's residence, or, at least, knew perfectly well how to find it

"Some two months after the decree of divorce Mr. Leathers married the respondent, Elizabeth Smith Stewart, who had lived as a domestic in his family in Minneapolis, and lived with her in St. Albans till his death there in 1903, but had no children by her. The respondent was aware of his intention to procure the divorce, and her affidavit in support of the allegation of cruel and abusive treatment was filed in the case. There was no evidence that she instigated the making of the false affidavit as to the residence of the wife, but she had reason to believe that it could have been easily ascertained.

"Mr. Leathers died in 1903, and the respondent was appointed administratrix upon his estate, and the personal estate was awarded to her, as the widow's allowance, in 1903.

"The petitioner, though aware as early as 1898 of the decree of divorce and of the marriage ceremony of Mr. Leathers with the respondent, did not file any petition for the annulment of the decree of divorce until November 13, 1909. before which time not only had Mr. Leathers died, but his counsel (Mr. Josiah Crosby) in the divorce proceedings, and the justice (Justice Wiswell) who granted the decree, had also died. She did not allege or prove that the petition could not have been filed earlier.

"Personal service of this petition for annulment was made upon the respondent as claiming to be the widow of Mr. Leathers, but no service was ordered or made on her as administratrix of Mr. Leathers. The only children and heirs of Mr. Leathers are two sons of himself and the petitioner, of age, and who acknowledge notice of the pendency of the petition and make no objection.

"Mr. Leathers was honorably discharged from the military service of the United States and drew a pension as such. His legal widow is entitled to a pension on his account.

"At the hearing the respondent appeared by counsel and filed an answer, not under oath and signed only by her attorney, but did not testify.

"I rule that the answer is not evidence of any statements made therein.

"I further rule that the petitioner is not barred by laches."

A decree of annulment was made.

The facts found by the court below disclose a clear case of fraud upon the rights of this petitioner, and gross imposition upon the court which granted the divorce. By the libelant's false and fraudulent affidavit in the libel as to the libelee's residence and to the inability to ascertain it by reasonable diligence, the court was induced to assume a jurisdiction which it did not in reality possess. R. S. c. 62, § 4, declares that "when the residence of the libelee can be ascertained it shall be named in the libel, and actual notice shall be obtained. * * * When the residence of the libelee is not known to the libelant, and cannot be ascertained by reasonable diligence, the libelant shall so allege on oath in the libel." And it is only in the latter case that the court has jurisdiction to order constructive notice to the libelee by publication. And unless it be proved at the hearing that the sworn allegations in the libel as to the residence of the libelee are true, the court has no jurisdiction, for want of proper notice, to decree a divorce. The apparent jurisdiction thus induced by fraud is colorable only.

And no doubt exists that in such cases the court may, and in proper cases should, vacate the decree of divorce on the petition of the defrauded spouse. Spinney v. Spinney, 87 Me. 484, 32 Atl. 1019...