Newcomb's Ex'rs v. Newcomb

• Decision Date: 19 December 1877
• Citation: 76 Ky. 544
• Parties: Newcomb's Executors, & c. v. Newcomb.
• Court: Kentucky Court of Appeals

76 Ky. 544

Newcomb's Executors, & c. v. Newcomb.

Court of Appeals of Kentucky.

December 19, 1877

APPEAL FROM LOUISVILLE CHANCERY COURT.

JOHN ROBERTS OF COUNSEL FOR APPELLANTS.

1. Marriage is a status over which the sovereign will has unlimited control, except as restrained by the organic law. (1 Bishop on Marriage and Divorce, sec. 19.)

Section 32, article 2 of the constitution of this state does not limit the power of the legislature over the institution of marriage, but simply defines the mode by which such power shall be exercised.

The legislature may confer power on the courts to dissolve the relation for cause or without cause; to proceed by appointing a guardian ad litem for a defendant of unsound mind without service, actual or constructive, as provided in act of 1865 (Myers's Sup. 711), and to dispense with the jury to try the question of lunacy or unsoundness of mind, as provided in the act of 1871. (1 Sess. Acts 1871, p. 61.)

These acts show that divorce proceedings are sui generis.

2. A decree of divorce, so far as the divorce is concerned, is a finality. (Maguire v. Maguire, 7 Dana, 181; Parrish v. Parrish, 9 Ohio St. 537; Lucas v Lucas, 3 Gray, 140; Smith v. Smith, 20 Mo 170.)

If the rules of procedure prescribed by the statute for other cases be applied to this, the judgment of divorce in this case was not void, a guardian ad litem having been appointed and having made defense for the insane defendant. (Ray v McIlroy, 1 Mar. 613; Banta's heirs v. Calhoon, 2 Mar. 168; Bustard v. Gates, 4 Dana, 430; Benningfield v. Reed, & c., 8 B. Mon. 105; Downing's heirs v. Ford, & c., 9 Dana, 391; Bank U.S & c. v. Cockran, & c., 9 Dana, 395.)

3. Service of summons on persons of unsound mind is not provided for by the Code or Statutes, unless such persons are judicially found to be of unsound mind, or are confined in one of the state lunatic asylums.

4. The affidavit to obtain constructive service is not a jurisdictional fact. (Thomas v. Mahone, 9 Bush, 125; Civil Code, sec. 91.) Sections 60 and 82 of the Code apply only to persons judicially found to be of unsound mind.

The same imperative language is used relative to the appointment of a guardian ad litem for infants as for persons of unsound mind. (Civil Code, secs. 55, 56, and 60, 82.) In the case of each it is provided, that a guardian ad litem can not be appointed until after service of summons as directed by the Code, and that no judgment can be rendered until after the appointment and a defense by the guardian ad litem.

" The infant defendants having been all summoned, the failure to answer by guardian or otherwise is only an error which would entitle them to a reversal, but it did not render the decree or sale either void or voidable." (Thornton v. McGrath, 1 Duv. 354.) And in Simmons ?? McKay (5 Bush, 25) this court decided that a judgment against nonresident infants, constructively summoned by warning order, was valid until reversed, notwithstanding a guardian ad litem had not been appointed to defend. (See also Blimm v. Commonwealth, 7 Bush, 322; Porter's heirs v. Robinson, 3 Mar. 253; Bustard v. Gates and wife, 4 Dana, 436.)

The affidavit is not essential to give jurisdiction, and is no part of the process. (Hynes v. Oldham, 3 Mon. 266; Benningfield v. Read, 8 B. Mon. 103; Allen v. Brown, 4 Met. 342; Bailey v. Beadles, 7 Bush, 383.)

5. Mrs. Newcomb was a proper subject for constructive service. She was domiciled in Massachusetts, although the residence of her husband was in Kentucky. (Maguire v. Maguire, 7 Dana, 186; Rhyms v. Rhyms, 7 Bush, 316.)

6. The residence of the husband and wife, under the statutes of this state, is not necessarily the same, as is shown by section 4, chapter 47, Revised Statutes. (See Hick v. Hick, 5 Bush, 672; Wharton on Conflict of Laws, secs. 44, 45, 56, 67; Lieber's Encyclopedia Americana, vol. 4, Appendix Domicilii.)

7. If the law does not afford any other manner of judicial notification, then, should the defendant be an actual non-resident dweller, inhabitant, or abider in another sovereignty, no matter what may be his intention or purpose, the constructive service against him is the proper mode of proceeding. (1 Wend. 43; 4 Harr. 383; 2 Rich. 489; Spen. 328-333.)

A guardian can change the domicil of an idiot so as to affect the distribution of the personal estate of such idiot. ( Holyoke v. Haskins, 5 Pick. 26.)

8. If it be assumed that the court had jurisdiction over the subject-matter, in no event can the decree be gone behind, in a collateral proceeding, to ascertain whether there was a jury or not.

It can not be determined in this case whether the trial in the divorce case was according to the mode prescribed by the act of 1865, or by the mode prescribed by the act of 1871.

A denial of a jury trial, if tried under the act of 1865, would not have rendered the proceeding void, but only liable to be reversed for error. (Cooley's Con. Lim. 453.)

In the acts of January 31, 1809 (4 Littell's Laws, 19), and the act of March 2, 1843, no jury trial was required. (See Evans v. Evans, 5 B. Mon. 278.)

" A jury shall not be used in any case for divorce or alimony." (Sec. 8, art. 3, chap. 47, Rev. Stat.)

9. A widow of unsound mind is not authorized by statute to renounce her husband's will; it can not be renounced by next friend for her.

10. " Jurisdictional facts, such as service of the writ, and the like, are presumed, and conclusively presumed, in the case of a domestic court of general jurisdiction, unless the record itself shows the contrary. (Coit v. Haven, 30 Conn. 196, 200; see also Collen v. Ellison, 13 Ohio 446; Morgan v. Burnet, 18 Ohio St. 546; Grignon's Lessee v. Astor & c., 2 How. 341; Deguindre v. Williams, 31 Ind. 446.)

Where the record is silent on the subject of notice, the judgment of a court of general jurisdiction will support itself, and can not be collaterally impeached or called in question because of any alleged want of jurisdiction over the parties to the decree." (Lawlor v. White, 27 Texas, 253.) See to same effect Hahn v. Kelley (34 Cal.)

11. When a court of equity jurisdiction in this state grants a divorce, such decree, whether founded upon a jurisdictional fact or not, dissolves the marriage relation so far as Kentucky dominion and courts are concerned, and no court within the state, not even the court which rendered the judgment, could treat the parties as man and wife, until after such judgment of divorce was set aside by the court which rendered it, and that court, if it has any power to set aside such judgment, must do it within the time and according to the manner and form prescribed by law. (Maguire v. Maguire, 7 Dana, 181.) See Singleton v. Cogar (7 Dana, 479.)

BARR, GOODLOE & HUMPHREY ON SAME SIDE.

1. The absence of the affidavit of non-residence, or four months' absence from the state, does not render the decree void in the divorce suit of H. D. against Cornelia W. Newcomb.

2. The affidavit, upon which an order of warning is made by the court, is not a jurisdictional fact. (Civil Code, secs. 88, 89.)

3. When a defendant constructively summoned appeals to this court, he thereby enters his appearance, and the question of whether or not the lower court erred in entering a warning order against him becomes immaterial. (Gill v. Johnson, 1 Met. 650.)

The distinction between the action of the court in ordering warning, when satisfactory evidence is made of the existence of the non-residency or other grounds for constructive service, and the action of a clerk making the order as a ministerial act, seems to be sustained by the reasoning of the court in Collins v. Ryan (32 Barb. 649); McCahill v. Eq. Life Ass. Society (26 N.J.Eq. 532.)

Defendant is deemed to be constructively summoned thirty days after the warning order is made. (Thomas v. Mahone, 9 Bush, 125.)

4. It is the process, and, when required, its execution, which brings a party before the court; and this is the jurisdictional fact.

The want of the affidavit required by the statute (1 M. & B. 99) was error, and did not render the judgment void. (Lawlin heirs v. Clay, 4 Litt. 283; Hynes v. Oldham, 3 Mon. 266; Green's heirs v. Breckinridge's heirs, 4 Mon. 541; Blight's heirs v. Banks, & c., 6 Mon. 206; Tevis's adm'r v. Richardson, 7 Mon. 655; Benningfield, & c. v. Reed, 8 B. Mon. 102.)

In McLaughlin v. Ball (MS. Op.) the order of warning was made by the clerk without any affidavit of non-residency.

Unpublished opinions are doubtful authority. (Trueman v. White's heirs, 14 B. Mon. 573.)

5. The distinction taken between the action of the court and of the clerk in making an order of warning in Hynes v. Oldham (3 Mon. 266), is consistent with other cases. ( Mims v. Mims, 3 J. J. Mar. 105; Lloyd v. McCauley, 14 B. Mon. 430; Roberts v. Stowers, 7 Bush, 296; Long v. Montgomery, 6 Bush, 395; Ruby v. Grace, 2 Duv. 540.)

6. The proof necessary to sustain an appeal, and when the same judgment is collaterally attacked, is very different. ( Jacob's adm'r v. L. & N. R. R. Co., 10 Bush, 269; Sidwell v. Worthington, 8 Dana, 77.)

The affidavit upon which the warning order is made by the court, the record being silent, will be presumed to sustain the judgment of a superior court. (Peacock v. Bell, 1 Saund. 74; Jacob's adm'r v. L. & N. R. R. Co., 10 Bush, 269.)

There is no reason which justifies the indulgence of legal presumptions when the mode pursued is actual service, which does not apply with equal force when the mode adopted is constructive service. See Hahn v. Kelly (34 Cal 410), the reasoning of which is a conclusive argument against the limitations to presumptions as announced in Galpin v. Page (18 Wall. 367). This court has also disregarded the exception announced in Galpin v. Page in Sidwell...