Payne v. Payne
| Citation | 169 N.E. 475,90 Ind.App. 594 |
| Decision Date | 09 January 1930 |
| Docket Number | No. 13804.,13804. |
| Parties | PAYNE v. PAYNE. |
| Court | Court of Appeals of Indiana |
OPINION TEXT STARTS HERE
Appeal from Clark Circuit Court; George C. Kopp, Judge.
Divorce action by Frances E. Payne against Claude B. Payne. Judgment for plaintiff, and defendant appeals. Reversed, with directions.
Frank E. Lorch, Jr., and Stotsenburg, Weathers & Minton, all of New Albany, for appellant.
Appellee, plaintiff below, filed her petition for a divorce in the Clark circuit court. Her petition was not verified; neither did she file an affidavit as to her residence with her petition, as provided by section 1097, Burns' Ann. St. 1926. She filed an application for a restraining order, and, in the application, made certain allegations as to her residence, which application was sworn to.
[1][2] The Supreme and Appellate Courts have repeatedly held that the affidavit of residence required by the statutes in a divorce proceedings is mandatory, and, when not filed, the trial court is without jurisdiction; neither can it be waived by the parties. Foreman v. Foreman, 76 Ind. App. 83, 131 N. E. 419;Willis v. Willis, 176 Ind. 631, 96 N. E. 763;Smith v. Smith, 185 Ind. 75, 113 N. E. 296.
[3] Before the trial court had authority to entertain a petition for an interlocutory order as provided by section 1109, Burns' Ann. St. 1926, it was mandatory that a petition for a divorce be filed and that the petition with proper allegations as to residence be sworn to or an affidavit be filed with the petition, as required by section 1097, supra, as construed by the Supreme Court of Indiana. Smith v. Smith, 185 Ind. 75, 113 N. E. 296;Brown v. Brown, 138 Ind. 257, 37 N. E. 142;Eastes v. Eastes, 79 Ind. 363.
Judgment reversed, with instructions to permit appellee to file affidavit as to her residence with her petition for a divorce, if she so desires.
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