Nelson v. Robinson
| Decision Date | 23 March 1951 |
| Docket Number | No. 32919,32919 |
| Citation | 154 Neb. 64,46 N.W.2d 892 |
| Parties | NELSON v. ROBINSON. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. When a marriage is supposed to be void, or the validity thereof is doubted, either party may file a petition in the district court of the county where the parties, or one of them, reside, for annulling the same.
2. Such petition or bill shall be filed, and proceedings shall be had thereon, as in the case of a petition or bill filed in said court for divorce; and upon due proof thereof it shall be declared void by a decree or sentence of nullity.
3. Where a statute authorizes personal service on a nonresident then out of the state, and prescribes the manner in which the service shall be made, the service must be made by the person or officer designated.
4. Service outside of the state by a sheriff, deputy sheriff, or other person of a foreign jurisdiction, without appointment by the sheriff of the county in which the suit was brought, as required by statute, is insufficient and invalid.
5. Statutes prescribing the manner of service of summons are mandatory and must be strictly pursued.
6. A reasonable attorney's fee may be allowed for the services of a person's attorney in defending against a suit for annulment of marriage in the Supreme Court.
F. J. Reed, Mitchell, for appellant.
Atkins, Lyman & Ferguson, Scottsbluff, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, CHAPPELL, WENKE, and BOSLAUGH, JJ.
The plaintiff, A. Rudyard Nelson, instituted this action in the district court for Scotts Bluff County against Esther B. Robinson, also known as Esther B. Nelson, to have the court declare and adjudge the marriage between the plaintiff and defendant to be null and void and of no legal effect.
We will hereafter refer to the parties as designated in the district court.
The record discloses that the plaintiff and defendant were married at Bridgeport, Nebraska, on January 7, 1948. They lived together on a ranch and farm owned by the plaintiff's parents until March 22, 1949. No children were born to this union. The plaintiff, through some source not apparent in the record, obtained information to the effect that his marriage to the defendant was illegal in that she had not obtained a legal divorce from her previous husband, Joseph E. Robinson, who was still living.
Pursuant to section 42-119, R.S.1943, the plaintiff brought this action for the purpose of having his marriage to the defendant adjudged to be null and void and of no legal effect. This section of the statutes provides that when a marriage is supposed to be void, or the validity thereof is doubted, either party may file a petition in the district court of the county where the parties, or one of them, reside, for annulling the same, and such petition or bill shall be filed, and proceedings shall be had thereon, as in the case of a petition or bill filed in said court for divorce; and upon due proof thereof it shall be declared void by a decree or sentence of nullity.
The record further discloses that the defendant Esther B. Robinson was married to Joseph E. Robinson at Ventura, California, on December 21, 1944. On August 21, 1946, Esther B. Robinson filed suit for divorce in the district court for Scotts Bluff County, Nebraska, against Joseph E. Robinson. The defendant, Joseph E. Robinson, did not waive the issuance and service of summons, or enter his voluntary appearance in this action.
On March 12, 1947, Esther B. Robinson filed an affidavit in conformity with section 42-305, R.S.1943. This section provides in part as follows: '* * * personal service out of the state as herein provided for shall not be had without the plaintiff or his or her attorney filing an affidavit showing that the defendant is a nonresident of this state, and that personal service cannot be had on the defendant in this state.' While the plaintiff contends that this affidavit is legally insufficient, we conclude from an examination of the same that it meets the requirements of the statute.
The out-state summons is as follows:
'You are hereby commanded to notify Joseph E. Robinson Defendant, that he has been sued by Esther B. Robinson Plaintiff, in the District Court of the Seventeenth Judicial District in and for the County of Scotts Bluff and that unless he answer on or before the 14th day of April, A. D., 1947, the petition of said Plaintiff filed against him in the Clerk's office of said Court, such petition will be taken as true, and judgment rendered accordingly. You will make due return of this summons on or before Monday, the 24th day of March, A. D., 1947.
'Witness my hand and seal of said Court at Gering, Nebraska, this 12th day of March, A. D., 1947.
'/s/ C. R. Barton Clerk of the District Court
By 021348
Deputy
'STATE OF NEBRASKA
SCOTTS BLUFF COUNTY} §§
'I, Mahlon C. Morgan, sheriff in and for said County, and State of Nebraska, do hereby appoint _____ of Los Angeles County, State of California, my agent to serve this writ.
'/s/ Mahlon C. Morgan Sheriff
'STATE OF CALIFORNIA
COUNTY OF LOS ANGELES} §§
'H. E. Rodenmayer being first duly sworn deposes and says that he is the identical person who was appointed agent by the sheriff of Scotts Bluff County, State of Nebraska, to serve the within summons, that he served the same upon the within named Joseph E. Robinson on the 23rd day of March, 1947, by delivering to him personally in Los Angeles County, State of California, a true and certified copy of this writ with all endorsements thereon.
'/s/ H. E. Rodenmayer'
This was sworn to before a notary public on March 28, 1947.
On April 17, 1947, by judgment and decree filed April 19, 1947, Esther B. Robinson was granted an absolute divorce from Joseph E. Robinson and the custody of the two minor children of the parties by the district court for Scotts Bluff County. There was no appearance made by the defendant.
In the instant case hearing was had before the trial court on March 22, 1950, on the petition of the plaintiff, the answer and cross-petition of the defendant wherein the defendant charged the plaintiff with extreme cruelty and prayed for a divorce, alimony, support money for herself and children, attorney fees, and costs, and on the plaintiff's reply. The only evidence offered and received was in behalf of the plaintiff. No evidence was offered by the defendant. The trial court, making reference to the summons outside of the state and return made thereon in the case of Esther B. Robinson v. Joseph E. Robinson, made the following findings: That there was a lack of appointment and authorization, by name or other designation endorsed on the writ, by the sheriff of Scotts Bluff County, Nebraska, of any person as his agent to serve the same; that said H. E. Rodenmayer, the person making the return on the summons, not having been lawfully appointed so to do, was wholly without power or authority to make a valid service of the summons; that the service as made by him so without authority and on Sunday was and is a nullity, and the court did not acquire jurisdiction to make and enter the decree of divorce in the case of Esther B. Robinson v. Joseph E. Robinson; and decreed that the marriage between the plaintiff, A. Rudyard Nelson, and Esther B. Robinson be declared null and void and to have no legal force or effect.
On March 27, 1950, the trial court made an order to the effect that the same being one of the days of the regular January 30, 1950, term of the court, the court, on its own motion, set aside the order of March 22, 1950, and continued the cause for further hearing. On July 12, 1950, the matter came on for further hearing. No evidence was taken. The trial court dismissed the plaintiff's petition, granted the defendant an absolute divorce on her cross-petition, made certain allowances for support of the defendant, and...
To continue reading
Request your trial
-
Ex Parte D.B.
...in this context means that a court does not obtain personal jurisdiction over a respondent. See generally, Nelson v. Robinson, 154 Neb. 64, 70, 46 N.W.2d 892, 895 (1951) (noting that Nebraska has mandatory explicit statutory provisions providing for service of process and when service did n......
-
Zutavern v. Zutavern
...and the fact that the defendant proceeds by cross-petition instead of an original suit does not change the rule.' In Nelson v. Robinson, 154 Neb. 64, 46 N.W.2d 892, 896, this court recently affirmed this pronouncement in this manner: 'In Willits v. Willits, 76 Neb. 228, 107 N.W. 379, 5 L.R.......
-
D.B. v. M.A.
...in this context means that a court does not obtain personal jurisdiction over a respondent. See generally, Nelson v. Robinson, 154 Neb. 64, 70, 46 N.W.2d 892, 895 (1951) (noting that Nebraska has mandatory explicit statutory provisions providing for service of process and when service did n......
-
Anderson v. Autocrat Corp., 39830
...of service of summons are mandatory and must be strictly complied with. Erdman v. National Indemnity Co., Supra; Nelson v. Robinson, 154 Neb. 64, 46 N.W.2d 892 (1951). We have also recently held that a statute which authorizes the use of postal service to notify a defendant that he has been......