Pettiford v. Zoellner

• Decision Date: 26 January 1881
• Citation: Pettiford v. Zoellner, 45 Mich. 358, 8 N. W. 57 (Mich. 1881)
• Court: Michigan Supreme Court
• Parties: PETTIFORD v. ZOELLNER.

8 N.W. 57

45 Mich. 358

PETTIFORD v. ZOELLNER.

Supreme Court of Michigan

January 26, 1881

Where a decree of divorce is attacked collaterally only jurisdictional errors will be considered.Where in such case it appears that the contents of the affidavit for an order of publication tend to make out what is required as the basis for the order, it will be regarded as sufficient.So held where the fact of non-residence of the defendant was stated on information and belief.An affidavit of publication in such action, made by one who does not describe himself as clerk, but who swears positively to the fact of publication and that he was employed in the office, and knew all the facts stated, held sufficient.

Case made from Wayne.

Latham & Case, for plaintiff and appellant.

Adam E Bloom and George Gartner, for defendant.

GRAVES, J.

The plaintiff brought ejectment for certain premises situated in Detroit and in the occupation of defendant, and the circuit judge sitting without a jury found in favor of the latter.A review is asked by the plaintiff on a case.The premises were formerly owned by one Julius Zoellner, who died seized and in possession and without any will on the twelfth of May, 1880.At that time the defendant was residing with him as his wife and she now claims to be his lawful widow and in that character asserts a right to hold possession for a full year from Zoellner's death under the statute.Comp.Laws, � 4291.On the eighth of June, 1857, the decedent married one Margaretha Schnurr at Toledo and lived with her as his wife until November, 1871.The plaintiff and two others are children of that marriage and decedent's sole heirs, and she sues in that character.

The defendant on the tenth of June, 1865, became the wife of one Anthony Bittner.In April, 1874, and while the former wife of the one and the former husband of the other were living, the decedent and the defendant went through a regular ceremony of marriage and cohabited together thereafter and until Zoellner's death, as husband and wife.September 26 1872, the Wayne circuit in chancery granted a divorce in decedent's favor against the said Margaretha Schnurr on the alleged grounds of cruelty and habitual drunkenness, and on the twentieth of January, 1873, the same court allowed a decree of divorce in defendant's favor against the said Bittner on the alleged ground of desertion.The result of the ejectment depends on the question whether the defendant is or is not the lawful widow of decedent the plaintiff's father and this in turn depends on the effect due on this inquiry to the divorce proceedings.The plaintiff's counsel points out a large number of defects in each of the divorce cases which he contends go far enough to overthrow the decree.It is very plain that many serious irregularities were committed and which upon a direct proceeding it may be would have necessitated a reversal.But the records are now brought in question collaterally and no objection can be noticed which does not go to the jurisdiction.If the court acquired the right to adjudicate, the the proceedings and decisions are not open to revision in this way.The question which sometimes oocurs, whether a court which has obtained jurisdiction has not gone on and exceeded it, is not involved.

If in either of the divorce cases the decree is void the plaintiff is entitled to recover.On the other hand, however irregular or erroneous the proceedings, if the court had jurisdictional power the defendant cannot be disturbed.In each case the defendant was proceeded against on publication and not on service of subpoena or appearance, and whether the court obtained jurisdiction to hold cognizance of the merits depends on the practice which was pursued in respect to those proceedings.If that practice though irregular or imperfect was not void it is sufficient for the present inquiry.The decree cannot be disregarded.The objections brought against the later proceedings are not tenable...