Potter v. Potter

• Decision Date: 27 October 1938
• Citation: 2 A.2d 93,39 Del. 487
• Court: Supreme Court of Delaware
• Parties: TABITHA B. POTTER v. PURNELL P. POTTER

2 A.2d 93

39 Del. 487

TABITHA B. POTTER v. PURNELL P. POTTER

Supreme Court of Delaware, Kent County

October 27, 1938

Court in Banc for Kent County. Case certified by the Superior Court for Kent County.

Petition for divorce a vinculo matrimonii, No. 23, April Term, 1938.

Upon the original writ of summons the Sheriff made a return of "non est inventus". An alias writ was issued returnable to the July Term, 1938, and personal service of the writ was made upon the defendant. No publication was made by the Sheriff. At the hearing of the cause, the defendant did not appear in person or by counsel. The Court upon the authority of Morris v. Morris, 2 Boyce 583, 83 A 934, was of the opinion that the Court acquired no jurisdiction for the reason that the service of process was not in accordance with the statute, and declined to proceed with the hearing. Thereafter, the petitioner asked for a rule upon the defendant requiring him to appear and show cause why the service of process should not be deemed to be sufficient. Personal service of the rule was had, and upon its return the Court certified the question to the Court in Banc.

The applicable Sections of the Revised Code 1935 are as follows:

"3503 Sec. 7. The proceedings for divorce, or to have a marriage annulled, shall be by petition filed with the Prothonotary of the Superior Court in the County of the petitioner's residence, stating the true cause of the complaint and verified by the affidavit of the petitioner that the facts stated are true and that the complaint is not made out of levity or by collusion; whereupon a summons shall issue, for the defendant's appearance, and, upon proof of the service of such summons more than twenty days before the time of its return or upon proof of substituted service by publication as hereinafter provided, the cause shall proceed to trial, and shall be heard, tried and determined by the Court without the intervention of a jury, and the Court shall pass judgment thereon as to the Court shall seem meet and proper."

"3506 Sec. 10. When the defendant cannot be served personally within this State, and when at the time of the commencement of the action the plaintiff is a bona fide resident of this State, an alias summons shall issue to the second term next after issuing the original writ, which the sheriff shall publish for one month in such newspapers of the county, one or more, as he may judge best for giving the defendant notice; and the case may then proceed to trial with or without the defendant's appearance, subject to the provisions in the next succeeding section."

Tunnell and Tunnell for petitioner.

LAYTON C. J., HARRINGTON, RICHARDS, RODNEY and SPEAKMAN, J. J., sitting.

OPINION

LAYTON, C. J.

The Divorce Act, substantially as it now exists, was approved March 29, 1907 (Ch. 221, Vol. 24, Delaware Laws; Ch. 86, Rev. Code 1935, § 3497 et seq.). Morris v. Morris, supra, was decided in 1912, and the construction given to the section of the statute now under consideration has been consistently followed. In that case, as here, the original writ of summons was returned "non est inventus", and an alias writ to the next succeeding term was served personally, but no publication was made. The Superior Court held that the statute contemplated certainty of notice and the avoidance of collusion, and to those ends it had prescribed the character of the process and the method of its service; and that it was against the policy of the act to allow service of any kind to be substituted for service of the one kind directed by the act, even though the service attempted was, in truth, superior to the one required.

The Court, manifestly, construed the language of Section 3506, "when the defendant cannot be served personally within this State," as referable only to the original writ of summons; and it held publication of the alias writ to be compulsory, notwithstanding that, in the particular case, personal service of the writ was, in fact, accomplished.

The petitioner contends that a different construction of the Section is not only permitted, but necessitated; permitted, because the words, "shall publish" were intended to be mandatory only "when the defendant cannot be served personally within this State" whether with the original or the alias writ; and necessitated, for the reason that as modern proceedings in divorce have come to be regarded more as proceedings in personam, and as the right to resort to constructive service in personal actions proceeding according to the course of the common law is limited to cases where personal service cannot be made either because the defendant is a non-resident, has absconded, or has concealed himself to avoid service, a statute which provides for a constructive or substituted service where the defendant can be served personally within the State would be deemed to be unconstitutional and void. Therefore, it is argued, the statute must be construed as permitting personal service of the alias writ if that can be done.

Construction of a statute means only the ascertainment of the true intent and purpose of the legislature, discoverable primarily from the language employed. The rules and maxims are adopted and applied to that end, and they are useful in case of doubt and for the removal, not the creation of doubt. Hence, the rule is well established that, where the language of the statute is plain and its meaning clear, there is no occasion for construction. State ex rel. Green v. Foote, 5 W. W. Harr. (35 Del.) 514, 168 A. 245; Van Winkle v. State, 27 Del. 578, 4 Boyce 578, 91 A. 385, Ann. Cas. 1916D, 104.

The authority of the Superior Court to hear and determine causes for divorce without intervention of a jury is found in Section 3503 of the Code. That section provides for the filing of a petition, the issuance of a summons for the defendant's appearance and proof of the service more than twenty days before the return day of the writ, or proof of substituted service by publication as provided by Section 3506. The language of the latter section is, "when the defendant cannot be served personally within this State * * * an alias summons shall issue to the second term * * * which the sheriff shall publish * * *". He must make publication of the alias writ, and proof of such publication is commanded. There is no duty cast upon the Sheriff to make personal service of the alias writ, and consequently, he incurs no liability if he makes no attempt thereat. There is no provision made for the return of the writ, and no direction for proof of personal service as in the case of the original writ. The issuance and publication of the alias writ are tied together; are predicated upon the return of the original writ showing that personal service on the defendant within the State could not be effected. The statute points out expressly what the Sheriff shall do when an alias writ comes into his hands, and, by the strongest inference, gives him no authority to do anything else. Had the legislature intended to impose upon the Sheriff the duty to make, or to attempt to make, personal service of the alias writ, it would not have been difficult to express clearly that intention; and, no doubt, the Sheriff would have been required formally to show his inability to make personal service of the writ before proceeding to make the substituted service by publication. A jurisdictional requirement of such importance would not have been left to mere inference. The Court cannot indulge in conjecture as to probable or possible qualifications which may have been in the legislative mind where the language employed is without ambiguity and the meaning clear.

It is argued that a divorce proceeding has grown to include a judgment against the defendant for costs and counsel fees and sometimes a money judgment for alimony, and in these respects is one in personam; and, furthermore, as the statute (Section 3505, Rev. Code 1935) expressly applies to...