Scott v. Scott

• Decision Date: 25 February 1913
• Parties: SCOTT v. SCOTT.
• Court: New Jersey Court of Chancery

85 A. 1022

SCOTT

v. SCOTT.

Court of Chancery of New Jersey.

Feb. 25, 1913.

(Syllabus by the Court.)

Action by Hattie A. Scott against Edward Scott for divorce. Application for order of reference and a special master for want of an answer. Application denied, and order for publication entered.

Ward & McGinnis, of Paterson, for petitioner.

BIDDLE, Adv. M. The defendant not being found for the purpose of being served with process within this state, an order for publication and substituted service was taken, notice published in the designated newspaper, and service made of the notice and petition, as required by Chancery Rule 224a, par. 4, under a special direction. The published notice, intended to conform with Chancery Rule 58, states the object of the suit as follows: "The said petition is filed against you for an absolute divorce from the bonds of matrimony for desertion." It appears from the petition that the petitioner seeks an absolute divorce for the defendant's adultery.

In Brant v. Brant, 71 N. J. Eq. 66, 71 Atl. 350, a decision under the divorce act of 1902 (P. L. 1902, p. 502), the petitioner was not satisfied with specifying strictly the object of the suit, but stated, though incorrectly, the kind of divorce sought, and inaccurately the intended statutory charge. It may be said to have been intimated that if there had been statutory warrant for service upon the defendant of a certified copy of the petition, and such service had been made, the defects would have been cured. This view, if indeed entertained, could have regarded merely the nature of the official information to be given by the petitioner privately to the absent defendant.

But the divorce act. of 1907 makes jurisdiction to depend upon publication of the order or notice thereof, "to be followed" by service of the petition and order or notice thereof, if practicable. P. L. 1907, p. 477, § 7; page 479, § 14. "To be followed" are words not implying that one or more insertions in the newspaper of the order or notice thereof must precede the fact of service in point of time. The term has another and more important legal significance. Publication is primary; service (though necessary, if practicable) is secondary. Publication must be made even when personal service under such order is obtained. It accomplishes a legislative purpose not attainable by private service. Now this court never made an order in a suit the object of which was that the petitioner might "obtain an absolute...