Prettyman v. Prettyman
| Decision Date | 23 September 1890 |
| Docket Number | 15,775 |
| Citation | 25 N.E. 179,125 Ind. 149 |
| Parties | Prettyman v. Prettyman |
| Court | Indiana Supreme Court |
From the Starke Circuit Court.
Judgment reversed, with costs.
A. I Gould, J. W. Nichols and H. R. Robbins, for appellant.
G. W Beeman, for appellee.
This is an appeal from a decree of divorce pronounced by the Starke Circuit Court upon the petition of Wingate Prettyman against Arrena Prettyman, on the alleged ground of cruel treatment.
The complaint is assailed in this court as being insufficient, but as it was not questioned in the court below, it is enough to say that with the affidavit relating to the residence of the plaintiff attached we should not disturb the decree on account of any defect in the complaint. Taking the complaint and the affidavit together, it appears on the face of the record that the court had jurisdiction. It is good after the finding and decree.
The evidence is in the record, but it does not appear therefrom that the residence of the petitioner was proved by at least two witnesses who were resident freeholders and householders of the State.
An amended bill of exceptions contains the following recital:
"Upon the trial, when the residence of the plaintiff was proposed to be shown by the proper evidence, it was tacitly agreed and admitted by the defendant's counsel that the plaintiff had been a resident of Starke county, Indiana, for more than two years."
This is all that appears upon the subject of the petitioner's residence in the evidence.
In Powell v. Powell, 53 Ind. 513, it is held that the residence of the petitioner in the State and county for the required length of time is a jurisdictional fact, which ought to be averred in the petition, and which must be proved to the satisfaction of the court trying the cause by at least two witnesses who are resident freeholders and householders of the State, before the court will have any power or authority to decree the divorce. Maxwell v. Maxwell, 53 Ind. 363.
The statute, in express terms, declares that the bona fide residence of the petitioner shall be proved by at least two witnesses who are resident freeholders and householders of the State.
A mandatory provision of the statute, which requires proof by witnesses who possess special qualifications, can not be satisfied or set aside by a tacit agreement or admission of the defendant, nor in any other manner. There must be actual...
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