Shrader v. Shrader

• Decision Date: 03 December 1895
• Citation: 18 So. 672,36 Fla. 502
• Parties: SHRADER v. SHRADER (two cases).
• Court: Florida Supreme Court

18 So. 672

36 Fla. 502

SHRADER v. SHRADER (two cases).

Florida Supreme Court

December 3, 1895

Appeal from circuit court, De Soto county; Baron Phillips, Judge.

Bill by Aurelia Shrader to declare a decree of divorce void. From a decree in favor of complainant, defendant appeals. Affirmed.

Bill by Norman J. C. Shrader for divorce. From a decree for complainant, defendant appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. Statutes authorizing constructive service of process by publication should be strictly and exactly pursued in order to give a court jurisdiction to render a judgment by default against a party who does not appear or plead in the case. This principle has especial application to proceedings under constructive notice or publication in divorce cases.

2. In divorce proceedings, where constructive notice is attempted if there is a failure to pursue the essential requirements of the statute, the decree rendered upon such illegal constructive service is void as to parties who have not appeared or pleaded in the case.

3. Where the court has no jurisdiction over the person of a defendant by reason of defective constructive service by publication upon her, any action of the court against the defendant, based upon such service, is without authority of law.

4. In a bill brought by a wife against a husband for alimony and maintenance under section 1486, Rev. St., the relief claimed is not predicated solely upon the existence of one or more legal grounds of divorce, but upon the necessities of the wife to have some provision made for her support, the ability of the husband to make such provision, and his failure to do so, it is not necessary for the complaining wife to be a resident of the state of Florida, provided the defendant husband is a bona fide resident of the state.

5. In order to support a suit for alimony and maintenance, the relation of husband and wife must be in force, but a void decree of divorce, obtained by the husband, works no change in the marital status of the parties, and is no bar to the complainant's maintaining any action which the status of a wife enables her to maintain.

6. An original bill in chancery in the nature of a bill review is a proper proceeding whereby to assail and set aside a decree of divorce which is null and void.

7. As a general proposition, courts of chancery have the same power to declare null and void invalid decrees of divorce that they have in other cases of fraudulent and void decrees.

8. Where a decree of divorce is obtained by a fraud practiced upon the court and the defendant, the jurisdiction being invoked by a false affidavit, it will be set aside upon bill filed for that purpose and proper proceedings thereon.

COUNSEL J. W. Brady, for Norman J. C. Shrader.

Frank Clark and C. W. Forrester, for Aurelia Shrader.

OPINION

LIDDON, J.

The two cases above stated are between the same parties. The appellant in case No. 1 is appellee in case No. 2, and the appellant in case No. 2 is appellee in case No. 1. In the court below the complainant in No. 1 was defendant in No. 2 and the complainant in No. 2 was defendant in No. 1. Both cases relate very much to the same subject-matter. The same principles of law apply to both cases. We have, therefore thought best to consider them together, and dispose of both in a single opinion.

Case No. 1 was instituted, and the decree appealed from was made after the final decree was passed in No. 2. As the appeal, however, in No. 1 was first taken, and transcript of the record in the same was first filed here, we gave it precedence in consideration. For convenience sake, in speaking of the cases they are hereafter called 'Case No. 1' and 'Case No. 2.' In case No. 1 the appellee, on January 11, 1893, brought her bill of complaint in the circuit court of De Soto county against the appellant. The object and purpose of the bill was to declare null and void the decree of divorce which had been rendered in the same court in case No. 2, and to require the defendant therein (appellant here) to contribute to the support of the complainant (appellee here). As shown by the bill of complaint, the principal ground upon which said decree of divorce was attacked was that the same was void for want of jurisdiction of the person of the complainant, who was the defendant in said divorce suit. The attempted service of process in such divorce suit was by publication. The affidavit upon which publication was made was as follows:

'State of Florida, De Soto County. Before me personally came Norman J. C. Shrader, who, being duly sworn, says that his wife, Mrs. Aurelia Shrader, is not in the county of De Soto, or within the jurisdiction of the circuit court of the Sixth judicial circuit of Florida, and that her residence is unknown to this affiant. Norman J. C. Shrader.

'Sworn to and subscribed before me this 21st March, A. D. 1891. [Seal] N. MacReynolds, Notary Public.'

The affidavit of publication and order attached thereto in the case were as follows:

'State of Florida, County of De Soto. Personally appeared before me, a notary public, T. J. Pepper, who deposeth and saith that he is publisher of the Arcadian, a newspaper published in the town of Arcadia, in said county and state, and that he has made publication of the chancery notice of Norman J. C. Shrader vs. Aurelia Shrader (a copy of which is hereto attached) for five consecutive weeks, as required by law, embracing issues of April 9th, April 16th, April 23rd, April 30th, and May 7th, 1891. T. J. Pepper.

'Sworn to and subscribed before me this 8th day of May, 1891. [Seal] J. L. Jones, Notary Public.'

'In Circuit Court, Sixth Judicial of the State of Florida, in and for the County of De Soto. In Chancery. Norman J. C. Shrader vs. Aurelia Shrader. Whereas, it has been made to appear by affidavit that the defendant in the above-entitled cause resides beyond the limits of the Sixth judicial circuit of Florida, and is over 21 years of age: Therefore, it is ordered that Aurelia Shrader, defendant, as aforesaid, shall appear, plead, answer, or demur to complainant's bill filed in the above cause on or before the first day of June, 1891, or a decree pro confesso will be taken against her. Done and ordered this 28th day of March, A. D. 1891.'

Certified copies of all of these papers were attached as exhibits to the bill of complaint. The bill alleged, among other things in substance, the residence of the complainant in St. Louis, Mo., and of the defendant in Polk county, Fla.; the marriage of the parties, in Kentucky, in 1863; their subsequent removal to the state of Texas; that the defendant, in November, 1883, sent the complaint, without her consent, away from their home in said state, to St. Louis, Mo., without letting her know his purpose in so doing; that he contributed nothing whatever to her support since November, 1884; that complainant did not leave her husband, the defendant, with any intention or desire to remain away from him, but because he commanded her to do so, and she was powerless to refuse obedience to his commands; that she would not have departed from her home if she had not been sent away; that after her departure from home she received letters from the defendant, and that he at all times knew perfectly well where she resided and could be found; that defendant, on March 21, 1891, filed his bill for divorce against the complainant in the circuit court of De Soto county, where he did not reside; that in said bill the defendant alleged falsely that the complainant did on the 20th of May, 1883, without cause, willfully desert the complainant, abandoning him at his home in Texas, since which time the complainant and defendant had not lived together as man and wife; that said allegations were wholly untrue; that complainant had always been willing to live with her husband, if he had expressed a willingness to receive her, which he never did. The bill further alleged that the defendant, for the purpose of obtaining jurisdiction of the person of the complainant in a false and fraudulent manner, made an oath in writing that the residence of complainant was unknown to him; that what purports to be a notice (hereinbefore set forth) was published in the Arcadian, a newspaper published in the town of Arcadia, De Soto county, Fla., as stated in affidavit of publisher attached to the bill of complaint; that no original order of publication, signed by the clerk, appears on file in said cause, and no copy of same was posted at the courthouse door, or sent by mail to complainant, and that she never received any notice whatever of the institution of said suit, and had no knowledge whatever that such a suit had ever been instituted against her until after a final decree had been fraudulently obtained against her; that after said decree was rendered the said defendant had the hardihood and audacity to write to her at St. Louis, Mo., where, to his knowledge, she had been ever since he sent her away from their home in Texas, notifying her that she was a divorced woman. The bill further alleged that the complainant was advised that said decree of divorce was null and void, for the reasons that the court had never obtained jurisdiction of the person of complainant, and that the false affidavit mentioned as being made by the defendant was a fraud upon the court and upon the complainant; that the notice attempted by publication upon the complainant was illegal, because it was not published for the length of time required by law; that a decree pro confesso was entered in the case without the clerk of the court having filed any certificate setting forth the fact of compliance with the law regulating constructive service of publication; that depositions were taken in said case, and...