McIntire v. McIntire

• Decision Date: 16 July 1931
• Parties: McINTIRE v. McINTIRE.
• Court: Maine Supreme Court

155 A. 731

McINTIRE

v. McINTIRE.

Supreme Judicial Court of Maine.

July 16, 1931.

Exceptions from Superior Court, Penobscot County.

Libel by Bertha L. McIntire against George E. McIntire. On exceptions to refusal to dismiss libel and to decree granting divorce. Exception sustained.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, FARRINGTON, and THAXTER, JJ.

L. B. Waldron, of Dexter, for libelant.

Crosby & Crosby, of Dexter, for libelee.

FARRINGTON, J.

The case is before this court on exceptions (1) to the refusal of the presiding justice to dismiss the libel and (2) on exceptions to the decree granting the divorce.

We will first consider the exception to the refusal to dismiss. It is claimed by the libelee that the court lacked jurisdiction by reason of the fact that his residence was not stated in the libel as provided in section 4, chapter 65, Revised Statutes (1916), section 4, chapter 73, Revised Statutes (1930).

The divorce libel dated July 17, 1930, in the usual form and signed by the libelant was inserted in a writ of attachment, returnable to Penobscot county superior court on the first Tuesday, of September, 1930. The officer's return shows due personal service on George E. McIntire. The writ, upon which a real estate attachment was actually made, contained the usual command "to attach the goods or estate of George E. McIntire of Dexter, in our County of Penobscot," but in the body of the libel or petition the residence of the libelee was not named, nor was the residence stated in any place other than as above indicated.

The docket entries show that the libelee, through counsel, entered a general appearance.

The contention of the libelee is, in effect, that a libel for divorce is a complete petition in itself, and that it should set out all matters which are required by statute, and that the residence of the libelee not being named in the libel or petition, such omission or failure cannot be cured by the fact that such residence is named or stated in the writ in which the libel was inserted. The evident contention is that the writ is no part of the libel and that a statement in the writ as to residence is not a compliance with the statute which provides that the residence, when it can be ascertained, "shall be named in the libel."

The first appearance in our statutes of any provision for the insertion of a libel for divorce in a writ of attachment was in 1862 when the Legislature by chapter 122, § 1, of the Public Laws of that year provided that "In addition to the mode of service already provided, the libel for divorce may be inserted in a writ of attachment, and served as other writs, by attachment, summons and copy; which attachment shall be a lien on any real or personal property attached for the execution of any decrees of the court in such proceeding; and the court shall have power to render any judgment necessary to carry such attachment into effect."

Up to this time the only method was by filing the libel, signed by the party complaining, with the clerk of the courts with such service as was required by the statutes.

Down to and including the Revision of 1871, no statutory requirement is found relating to the naming of the residence of the libelee in the libel, if it can be ascertained, and none relating to obtaining actual notice. This provision was first enacted by the Legislature of 1874, chapter 184 of the Public Laws of that year, section 1, which was as follows: "Upon all libels for divorce when the residence of the libelee can be ascertained, it shall be named in the libel and actual notice shall be obtained, if the libelee is out of the state, in such manner and by such means as may be ordered by the court. When it is not known to the libellant and can not be ascertained by reasonable diligence, the libellant shall allege and make oath to the same in the libel."

The 1874 provision became section 4 of the 1883 Revision (chapter 60) and the 1862 provision became section 3 of that revision.

From 1883 down to and including the date of the exceptions the provisions of the 1874 Act and those of the earlier 1862 Act have been in all the revisions of our statutes, as sections 4 and 3, with some slight and unimportant difference in language and punctuation, but, in effect, unchanged.

The purpose of the 1874 Act is apparent on a reading of its provisions. Under its requirements a greater measure of certainty as to actual notice to the party libelee was sought and made possible.

It might be said that the Legislature by the 1862 provision above referred to intended that the libel and the writ should be merged into a single legal Instrument to be known as the libel, and that such a construction of that statute is the natural and obvious one, because at that time there was no statutory provision relating to the naming of the residence of the libelee which was not required until the 1874 Act above quoted. But whatever the 1862 Legislature intended and whatever construction it may have placed upon its own act, the supreme and superior courts of this state since the enactment of the 1874 law have granted many divorces on libels inserted in writs of attachment where the only naming of the residence was in the writ itself, and by their decrees they have placed a judicial construction upon the meaning of the phrase "it shall be named in the libel."

While the decrees of presiding justices in the granting of divorces cannot per se be regarded as judicial decisions directly involving the construction of a statute, yet, a construction uniformly followed and acquiesced in, over a period of more than fifty-six years, cannot be regarded as entirely without weight. But, apart from that, and bearing always in mind the clearly fundamental intent of the 1874 Act to insist upon knowledge of the residence of the libelee and actual notice upon him or her, which is fully assured and accomplished by having the residence stated in the writ, we hold in this case that the residence was "named in the libel" and that such naming of the residence constitutes full compliance with the statutory requirements relating thereto. To place any other construction on the statute would be subversive of its real purpose and might well result in infinite difficulty and evil.

We quote with approval the language of the court in the case of Bridgeman v. City of Derby, 104 Conn. 1, 8, 132 A. 25, 27, 45 A. L. R 728: "It will be well to keep before us some of the fundamental principles of statutory construction. The intent of the lawmakers is the soul of the statute and the search for this intent we have held to be the guiding star of the court. It must prevail over the literal sense and the precise letter of the language of the statute." After citing other cases, the court further says: "When one construction leads to public mischief which another construction will avoid, the latter is to be favored, unless the terms of the statute absolutely forbid."

The point covered by this exception was involved in the case of Brennan v. Brennan, 129 Me. 498, 152 A. 313. Although a majority of the court failed to agree in that case, so that no decision resulted, we are in full accord in this opinion, and this exception is accordingly overruled.

Before considering the other exception, the following facts will be noted.

The libelant was married to the libelee in Dexter, Me., November 29, 1900. From the libelee's answer to the libel in the instant case and from the libelant's reply thereto, both of which form a part of the record in the case, it appears that she brought divorce proceedings against him by libel entered at the March, 1922, term of the superior court for Penobscot county, at which time it was continued to the May term and was thereafter continued until, at the November term, 1922, it was dismissed from the docket. It further appears that on October 7, 1922, he obtained a decree of divorce from the present libelant issuing from the Supreme Judicial Court for Somerset county. The docket entries in the original libels are not in evidence, due, doubtless, to the fact that when, in objecting to the admission of evidence of cruel and abusive treatment by reason of a judgment in the former case, the libelee's attorney said, "I will offer in evidence—" the justice presiding remarked, "I do not think at this point it will be necessary for you to offer evidence. I think the Court would have the right to take Judicial notice of records."

The case before us, however, was clearly tried on the basis of undisputed facts that George E. McIntire was granted an absolute divorce from Bertha L. McIntire on October 7, 1922, and that at the November term, 1922, her libel was dismissed from the docket of the Penobscot county superior court. It is also undisputed that the libelee in this case remarried in 1924, and on the basis of these facts we come to the consideration of the second exception.

After hearing in the instant case the justice presiding granted a divorce and awarded the libelant the sum of $1,000 in lieu of alimony.

The only question raised by this exception is as to the power of the court to make the decree.

The libelee's contention is that, inasmuch as an absolute divorce was decreed to him in 1922, the justice presiding had no power to decree a divorce to his former wife on her present libel brought some eight years after his divorce was granted.

In granting the divorce the justice presiding clearly relied on the case of Stilphen v. Stilphen, 58 Me. 508, 4 Am. Rep. 305, which was followed by Stratton v. Stratton, Adm'r, 77 Me. 373, 52 Am. Rep. 779.

In the Stilphen Case, the wife petitioned for a divorce and while her libel was pending her husband brought a cross-libel, both libels pending in the same court at the same time. In the absence of her counsel, who was acting for her in respect to both libels, and in her absence and at a time when, as she claimed, she did not expect the actions to be called for...