Millis v. Millis
| Decision Date | 19 November 1927 |
| Citation | 140 S.E. 503,165 Ga. 233 |
| Parties | MILLIS v. MILLIS. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
When the street address of a nonresident defendant in a divorce suit, who resides in a city in which the streets are numbered, and in which mail is delivered by carriers, is known to the plaintiff at the time of the institution of the divorce suit, it is the duty of the plaintiff, in making an affidavit for the purpose of obtaining an order to perfect service by publication, to give therein such street address or otherwise furnish it to the court or its clerk, in order to enable the clerk to properly address the envelope or package containing a copy of the newspaper in which notice requiring the defendant to appear is published. In such a case it is not sufficient to give merely the city and state in which the defendant resides.
Where the plaintiff, knowing the street address of the defendant failed to furnish it to the court or its clerk, for the deliberate purpose of preventing the defendant from receiving notice of her suit and from appearing and defending it when he had a good defense, and where the defendant did not receive such notice and did not know of the pendency of the suit until after the decree was granted, such conduct on the part of the plaintiff amounted to such fraud as would entitle the defendant to have the verdicts and decree in the divorce case set aside.
An order adjudging that service has been perfected upon a nonresident defendant in a divorce case, and its entry upon the petition therein, are not jurisdictional in character and where the trial judge, after investigation, orally adjudges that proper service has been perfected by publication, but fails to enter an order on the petition to that effect, such omission does not render the final decree in the divorce case void. In these circumstances the judge after the rendition of the final decree in such case, can have such order entered nunc pro tunc.
Error from Superior Court, Fulton County; John D. Humphries, Judge.
Petition to set aside a decree of divorce by John Millis against Mrs. M. R. Millis. A demurrer to the petition was sustained, and plaintiff brings error. Reversed.
Dorsey, Howell & Heyman and Mark Bolding, all of Atlanta, for plaintiff in error.
Anderson, Rountree & Crenshaw and Granger Hansell, all of Atlanta, for defendant in error.
On August 7, 1926, John Millis filed his petition against Mrs. M. R. Millis to set aside verdicts and final decree granting her a divorce from him. He made these allegations: He and defendant, after marriage, lived together as husband and wife for 20 years and until January 1, 1914, when without cause she left him and established her domicile in Fulton county of this state. On May 6, 1925, she filed a suit for divorce and made an affidavit, stating that he resided outside of Georgia and in Cleveland, Ohio. An order was taken for the service on him by publication. This service was to be effected by publication of process, twice a month for two months prior to the next term of court, in the public gazette known as Fulton County Daily Report. On May 26, 1925, the deputy clerk of the court certified that he had that day mailed a copy of said gazette, containing a marked notice of said suit, properly stamped and addressed, to petitioner at Cleveland, Ohio. On January 26, 1926, the first verdict in the divorce suit was granted to the wife. On June 3, 1926, a second verdict was granted, and on the same day a decree divorcing the parties was signed. At the time she made the affidavit of May 6, 1925, Mrs. Millis knew the street and number at which petitioner resided, and could and should have stated his full and complete street address. He did not receive any copy of said public gazette containing a marked notice of the suit, did not know of its pendency, and did not have any information or knowledge whatsoever of the bringing thereof and the obtaining of said verdicts and decree until he was notified by the attorneys for Mrs. Millis by letter received on July 9, 1926. Said gazette is not a paper of general circulation, but is of a limited local circulation.
The record in the divorce suit does not disclose that the judge, before the trial thereof, determined that service of said suit had been properly perfected as required by section 5558 of the Code (Civ. Code 1910) any order to that effect, showing service, nor do the minutes of the court disclose any such order; and petitioner charges that there was no such adjudication and no service as contemplated by law. Petitioner did not make an appearance, did not plead to the suit, and has never waived service. He is not in laches, has a meritorious defense, and is ready for instant trial. He is willing to submit himself to the jurisdiction of the court for the determination of the issues of law and fact that he will raise. He attaches as exhibits a demurrer and answer which he prays leave to file in the divorce suit, on the setting aside of the verdicts and decree. This answer sets out a meritorious defense to the libel for divorce. The failure of Mrs. Millis to furnish the well-known street address and number of the house at which petitioner resided in Cleveland, Ohio, was a concealment of material fact, amounting in law to a fraud on the court and against petitioner, and was omitted for the purpose of preventing him from appearing and making defense. The court was without jurisdiction to render said verdicts and said decree, and they are void. He prays that they be set aside, and that Mrs. Millis be enjoined from changing the present status.
By amendment he alleged that since the filing of his petition in this case he has learned that on August 9, 1926, Mrs. Millis obtained a purported order reciting that legal service had been perfected upon him in the divorce case, and a judgment of perfection of service by publication was granted on August 9, 1925, and entered nunc pro tunc. Said order was invalid, because not in compliance with section 5558 of the Code, and because the court had no jurisdiction of the divorce case and no jurisdiction to pass said order after the final verdict and decree.
The defendant demurred upon the ground that the petition set forth no cause of action. The court sustained the demurrer, and petitioner excepted.
1. Service of a nonresident defendant in a divorce suit shall be perfected as prescribed in the Code in causes in equity. Civil Code 1910, § 2951. If the defendant in an equitable petition does not reside in this state, service of the petition may be made by publication. Section 5553. Where the defendant resides out of this state, and it is necessary to perfect service upon such person by publication, upon the fact being made to appear to the judge of the court in which suit is pending, said judge may order service perfected by publication in the paper in which sheriff's advertisements are printed, twice a month for two months. The contents of the notice are prescribed. Section 5556. It has been held that there can be no service by publication without this order. Where the residence or abiding place of the nonresident party is known, the party obtaining the order shall file in the office of the clerk, at least 30 days before the term next after the order of publication, a copy of the newspaper in which such notice is published, with the notice plainly marked, and thereupon it shall be the duty of the clerk at once to inclose, direct, stamp, and mail said paper to the party named in the order, and make an entry of his action upon the petition or other writ in said case. Section 5557. This section, being in derogation of the common law, must be strictly construed in favor of getting notice to the nonresident party. So we have held that the paper containing this notice cannot be mailed by any person except the clerk or his deputy. Williams v. Batten, 156 Ga. 620, 119 S.E. 709. The courts quite uniformly hold that all the statutory requirements for the institution and prosecution of such proceedings, and especially such as are of a jurisdictional character, must be strictly and literally observed, in order that the judgment entered therein shall be of legal force and validity. 21 R.C.L. 1293, § 36.
Counsel for the defendant in their brief suggest that, since it is the duty of the clerk to mail the notice, that officer presumably must make proper inquiries to enable him to comply with the statute, and that there is no obligation resting upon the plaintiff in the premises. We cannot agree to this suggestion in its entirely. We think it is incumbent upon the clerk to make proper inquiries to enable him to discharge the duties resting upon him in this matter, but we dissent from the proposition that no obligation is on the plaintiff in the premises. It is the duty of the party, obtaining an order for service by publication upon his nonresident adversary, to furnish all information which he possesses or can reasonably acquire touching the residence or abiding place of the nonresident adversary. In Gwinn v. Gwinn, 145 Ga. 481, 89 S.E. 574, Romig v. Gillett,
187 U.S. 111, 23 S.Ct. 40, 47 L.Ed. 97; Grigsby v. Wopschall, 25 S.D. 564, 127 N.W. 605, 37 L.R.A. (N. S.) 206.
This brings us to construe section 5557, and to ascertain what information which the plaintiff possesses must be furnished by him or her to the court or its clerk, so as to enable that officer to properly mail such notice, and thus give notice to the defendant of the pendency of the suit. The decisions which bear upon this subject are few, so far as we have been able to find. The exact point raised in this case has never been passed upon by this court. In the first place, we have seen that this section is to be strictly construed in favor of...
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