Miller v. Miller

• Decision Date: 20 March 1914
• Docket Number: No. 8225.,8225.
• Citation: 104 N.E. 588,55 Ind.App. 644
• Parties: MILLER v. MILLER.
• Court: Indiana Appellate Court

55 Ind.App. 644

104 N.E. 588

MILLER

v.MILLER.

No. 8225.

Appellate Court of Indiana, Division No. 2.

March 20, 1914.

Appeal from Circuit Court, Howard County; Leroy B. Nash, Judge.

Action by Caroline M. Miller against Henry C. Miller. From a judgment for plaintiff, defendant appeals. Affirmed.Overton & Joyce, of Kokomo, for appellant. Blacklidge, Wolf & Barnes, of Kokomo, for appellee.

CALDWELL, J.

Action by appellee against appellant for divorce and alimony. The complaint, filed on the 3d day of April, 1911, charges as causes for divorce, cruel treatment, and the failure to make reasonable provision for the support of appellee. Appellant filed a general denial to the complaint, and filed also a cross-complaint, which appellee answered by general denial. Trial before a special judge, resulting in a judgment in favor of appellee for a divorce and alimony in the sum of $3,500, and an allowance of $350 for attorney's fees.

The first question presented is as to the sufficiency of the jurisdictional facts as shown by appellee's pleadings. The statute (Burns' Ann. St. 1908, § 1066) applicable to such question, as well as to several other questions presented and hereinafter discussed, is as follows: “Divorce may be decreed by the superior and circuit courts of this state, on petition filed by any person who, at the time of the filing of such petition, is and shall have been a bona fide resident of the state for the last two years previous to the filing of the same, and a bona fide resident of the county at the time of and for at least six months immediately preceding the filing of such petition; which bona fide residence shall be duly proven by such petitioner, to the satisfaction of the court trying the same, by at least two witnesses who are resident freeholders and householders of the state. And the plaintiff shall, with his petition, file with the clerk of the court an affidavit subscribed and sworn to by himself, in which he shall state the length of time he has 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, and stating his occupation, which shall be sworn to before the clerk of the court in which said complaint is filed.”

Said statute contains three distinct requirements: First, respecting the existence of certain specified jurisdictional facts as to residence; second, the degree and manner of proof of such facts; third, the nature and contents of an accompanying affidavit.

[1] Although the statute does not in terms so specify, still, since the facts within such first requirement are jurisdictional, their existence should be averred in the petition or complaint. Powell v. Powell, 53 Ind. 513.

[2] Appellee did not file with her complaint a separate affidavit. It is claimed in her behalf, however, that the complaint contains in addition to its own necessary jurisdictional averments, the facts required by statute to be presented by such an affidavit, and it is claimed also that said complaint was subscribed and sworn to by appellee. If such claims be valid, there is a sufficient compliance with the statute, as in such case a separate affidavit is not necessary. Stewart v. Stewart, 28 Ind. App. 378, 62 N. E. 1023.

[3] The complaint contains the following averment: “Plaintiff further alleges that she is now, and has been for more than two years last past, a bona fide resident of Howard county in the state of Indiana.” Such averment is a sufficient compliance with said first requirement of the statute. Polson v. Polson, 140 Ind. 310, 39 N. E. 498.

[4][5][6] As to whether or not the facts embraced by said third requirement are sufficiently alleged in the complaint presents a more difficult question. It is held that said statutory requirement as to the contents of such affidavit, or in this case, as to the contents of the complaint, is so far mandatory that there must be a substantial compliance therewith. While a substantial compliance satisfies the statute, there must be such a compliance as to each of the facts required to be presented by such an affidavit. A concession that a substantial compliance is sufficient compels the conclusion that a strict or literal compliance is not in all cases required. In determining what constitutes a substantial compliance as a general proposition, it would seem to be legitimate to consider the legislative intent that inspired the enactment. On this subject the Supreme Court says: “Manifestly, the legislative intent in the enactment of these provisions was to limit the operation of the statute to bona fide residents of the state, and to restrain and prevent the procurement of divorces by non-residents, through fraud or imposition practiced on the courts.” Eastes v. Eastes, 79 Ind. 363, 368;Wills v. Wills, 176 Ind. 631, 96 N. E. 763. Where, as here, the pleader undertakes to include in a verified complaint facts as to residence and occupation, literally required to be presented by affidavit, it would seem that all the facts pleaded bearing on such questions should be considered, and if, so viewed, such facts present a case apparently free from suspicion, a relatively wider departure from a strict compliance should be construed as a substantial compliance. Such is the spirit of the decision in Hunter v. Hunter, 64 N. J. Eq. 277, 53 Atl. 221.

The statutory provision above quoted respecting the contents of the affidavit is as follows: “And the plaintiff shall, with his petition, file with the clerk of the court an affidavit subscribed and sworn to by himself, in which he shall state [first] the length of time he has been a resident of the state, and [second] stating particularly the place, town, city, or township in which he has resided for the last two years past, and [third] stating his occupation.”

The complaint alleges that appellee is a housekeeper, which allegation satisfies the third provision. It contains also, as has been said, the allegation that appellee “is now and has been for more than two years last past, a bona fide resident of Howard county in the state of Indiana,” which allegation, in our judgment, is a sufficient compliance with the first provision. There is the further allegation that appellee “is now a resident of Center township.” There is no general averment as to the town, city, or township in which appellee resided during the two years immediately preceding the filing of the complaint. While in any case, general averments of said required facts constitute a compliance with the terms of the statute, so it would seem that the same end may be attained by specific averments. Thus appellee alleges in terms that her occupation is that of housekeeper. Had she in place of such general averment alleged specific facts as to her line of work, and how she occupied and used her hands and mind, and if such specific facts forced the conclusion that appellee is a housekeeper by occupation, such specific facts, taken with such conclusion arrived at therefrom, would satisfy the statute. A departure from the statutory language concerning domicile will not be fatal if the facts conferring jurisdiction can be gathered from the entire pleading. Nelson on Divorce & Separation, vol. 2, § 731. The pleading will be sufficient if facts are set out showing the required residence. 7 Enc. of P. & P. 67.

Bearing on the question under discussion, the following facts are averred in the complaint: The parties were married in 1872, and lived together as husband and wife until 1903, when they were divorced by the Howard superior court. They were remarried later in 1903, at which time appellant deeded a tract of land to appellee, retaining in his own name 128 acres, designated in the record as the “home farm.” Many facts are averred, showing long years of life together on the farm after said remarriage. It is further alleged that after said remarriage in 1903 the parties “have continued to live together in the same house until about the 20th day of March, 1911, when they separated, and have not since lived or cohabited together”; that prior to said separation, appellant notified various merchants of the city of Kokomo not to extend credit to appellee; that Ruth Miller, aged 16 years, daughter of the parties, is attending the high school at Kokomo, and is about ready to graduate, and that appellant has refused to provide her any means to get back and forth from school, “and has refused to pay any livery bills when she drove from their home in Clay township,” and has directed various merchants of the city of Kokomo not to extend credit to Ruth for clothing or food; that the married sons of the parties have been farming said two farms for several years. Facts are averred to the effect that in March, 1911, appellant forced appellee and the daughter Ruth to leave the home farm, and that appellee “has been compelled to rent a house in the city of Kokomo, and move to the same,” and that the daughter Ruth now lives with appellee; that appellee is now and has been for more than two years last past a bona fide resident of Howard county in the state of Indiana, and is now a resident of Center township. The allegation of present residence in Howard county, and in Center township is equivalent to an allegation that Center township mentioned is in Howard county. This court takes judicial knowledge that the city of Kokomo is in Center township, Howard county, Ind., and that there is no other city of Kokomo in said state, and that there is a township in said county known as Clay township. Allegations respecting Clay township and said city of Kokomo are connected together in a pleading designed to be filed, and actually filed, in the Howard circuit court of Howard county, Ind. Under such circumstances, it will be presumed that the Clay township referred to is the Clay township which the court judicially knows to be in said Howard county. Strode v. Strode, 3 Bush (Ky.) 227, 96 Am. Dec. 211.

It...