Smith v. Smith

• Citation: 110 N.E. 1013
• Decision Date: 07 January 1916
• Docket Number: No. 8792.,8792.
• Parties: SMITH v. SMITH.
• Court: Indiana Appellate Court

110 N.E. 1013

SMITH

v.SMITH.

No. 8792.

Appellate Court of Indiana.

Jan. 7, 1916.

Appeal from Circuit Court, Wells County; Wm. H. Eichhorn, Judge.

Suit for divorce by Adeline Smith against Joseph W. Smith. Decree for plaintiff, and defendant appeals. Affirmed, but transferred.Heller, Sutton & Heller, of Decatur, for appellant. C. L. Walters and L. C. De Voss, of Decatur, for appellee.

SHEA, J.

This was an action for divorce filed by appellee in the Adams circuit court. The venue was changed to the Wells circuit court, where a trial resulted in a judgment and decree granting the divorce, with $6,000 alimony and $400 fees for appellee's attorneys.

[1] The complaint charges cruel and inhuman treatment. No objection is made to the complaint in the court below, so that it need not be set out here. In the assignment of errors it is urged that the Adams circuit court had no jurisdiction of the subject-matter of the action in the first instance, and the Wells circuit court had no jurisdiction finally to render judgment. Fifty-eight points are set out under the heading, “Points, Propositions and Authorities,” in appellant's brief, most of which are mere abstract questions of law without specific application to the instant case.

[2][3][4] However, we are able to gather enough from the points and authorities and from appellee's authorities to conclude that the only question presented is as to the sufficiency of the affidavit filed by appellee with her complaint as required by section 1066, Burns 1914. Said affidavit reads as follows:

“State of Indiana, Adams County-ss.:

In the Adams Circuit Court. February Term, 1913. Adeline Smith v. Joseph W. Smith. Complaint for Divorce. Cause No. 8484. Affidavit of Residence by Plaintiff. Adeline Smith, being duly sworn, upon her oath deposes and says: That she is the plaintiff in the above-entitled cause of action; that she has been a resident of the state of Indiana for sixty-five years last past, and that for two years last past she has been a resident of the city of Decatur, in said county and state, and has during said time resided at No. - Mercer avenue, Decatur, Indiana; that her occupation is that of housewife. Adeline Smith.

State of Michigan, Shiawassee County-ss.:

Before me, Leon F. Miner, a notary public in and for said county and state, personally appeared Adeline Smith, who, being by me first duly sworn, subscribed the foregoing affidavit as true, as she verily believes, this 26th day of April, 1913. Witness my hand and notarial seal.

Leon F. Miner, Notary Public.

Shiawassee Co., Mich.

[Leon V. Miner, Notary Public, Shiawassee Co., Mich.]

My commission expires August 25, 1915.”

The specific objection to the affidavit is that it is verified before a notary public in the state of Michigan, and is therefore not in compliance with the statute above stated. Section 1066, supra, reads as follows:

“Divorce may be decreed by the superior and circuit courts of this state, on petition filed by any person who, at the time of the filing of such petition, is and shall have been a bona fide resident of the state for the last two years previous to the filing of the same, and a bona fide resident of the county at the time of and for at least six months immediately preceding the filing of such petition; which bona fide residence shall be duly proven by such petitioner, to the satisfaction of the court trying the same, by at least two witnesses who are resident freeholders and householders of the state. And the plaintiff shall, with this petition, file with the clerk of the court an affidavit subscribed and sworn to by himself, in which he shall state the length of time he has been a resident of the state, and stating particularly the place, town, city, or township in which he has resided for the last two years past, and stating his occupation, which shall be sworn to before the clerk of the court in which said complaint is filed.”

It is argued that, because said affidavit is sworn to before an officer outside of the state of Indiana, it amounts to no affidavit, as the affidavit must be sworn to before some officer in the state as a prerequisite to the trial court's jurisdiction. It will be observed that, upon filing a complaint for divorce, the complaining party must make affidavit before the clerk of the court if the strict letter of the statute be followed. The courts, however, have construed this language to be directory only, and that the affidavit might in the particular case then under consideration be verified before any officer authorized to administer oaths in this state. Brown v. Brown, 138 Ind. 257, 37 N. E. 142.

We call attention to the following statutes: Section 476, Burns 1914, reads as follows:

“Certificates or instruments, either printed or written, purporting to be the official act of a notary public of this state, of the District of Columbia, or of any other state or territory of the United States, and purporting to be under the seal and signature of such notary public, shall be received as presumptive evidence of the official character of such instrument and of the facts therein set forth.”

This is section 327 of the Acts of 1881 (Acts 1881, p. 300), being section 460 of the Revised Statutes of 1881.

Section 498, Burns 1914, reads as follows:

“When any affidavit is taken in another state, and certified by the officer or justice of the peace taking the same, under his hand and seal of office, if he have any such seal, and attested by the clerk of the circuit or district court, or court of common pleas of the county where such officer exercises the duties of his office, under the hand of the clerk and seal of this court, the clerk also certifying that the officer or justice of the peace, is by the laws of said state, duly empowered to administer oaths and affirmations, and take affidavits, every such affidavit shall be deemed sufficiently authenticated, and may be received and used in any of the courts of this state.”

This is section 341 of the Acts of 1881 (Acts 1881, p. 303); section 475, Revised Statutes 1881.

Both sections are contained in the general provisions of civil procedure under the subdivision “Written Evidence,” and are a part and parcel of the same legislative enactment. Under the familiar rule of statutory construction, it becomes the duty of this court to reconcile these provisions, if there be conflict, and to so construe them that full force and effect shall be given to both, if possible. State v. Ives, 167 Ind. 13, 22, 78 N. E. 225;Jackson v. Hocke, 171 Ind. 371, 84 N. E. 830;Princeton Coal Co. v. Lawrence, 176 Ind. 469, 476, 95 N. E. 423, 96 N. E. 387.

It will be observed that the first section (section 476, supra) contains the following language: “ Shall be received as presumptive evidence.” (Our italics.) This language is mandatory, and therefore we conclude that the courts of this state must accept an affidavit properly verified before a notary public of another state, where such verification is in due form, and the seal of the notary is properly attached, unless there be some other provision of the statute in conflict therewith.

We construe section 498, supra, as directory in its provisions, and not in conflict with section 476, as it applies to all officers before whom affidavits may be taken outside of the state, whether they are required by law to have an official seal or not, and, as we construe it, is designed primarily to apply to officers who have no seal, providing a way in which their official character may be duly authenticated.

It is suggested, in connection with the construction of these statutes, that the language imports the consideration of different subjects, as, for instance, the language of section 476, supra, refers to “certificates or instruments.” The language of section 498 refers to affidavits only. It is the opinion of this court that this language does not necessarily evidence conflict, but that the terms “certificates or instruments” are broader and more comprehensive than the term “affidavits,” and include affidavits within their purview.

“Affidavit” is defined in Anderson's Law Dictionary as follows:

“An affidavit is simply a declaration, on oath, in writing, sworn to by the declarant before a person who has authority to administer oaths.”

“Certify” is defined: “To certify is to testify to in writing; to make known or establish as a fact.”

“Instrument” is defined as “anything reduced to writing: a ‘written instrument’ or ‘instrument of writing’; more particularly, a document of a formal or solemn character.”

In the Century Dictionary the following definitions are given:

“Affidavit-a written declaration upon oath, a statement of facts in writing signed by the affiant and sworn to before some officer.”

“Certificate-in a general sense a written testimony to the truth of something, a paper written to serve as evidence of a matter of fact.”

“Instrument-a writing given as a means of creating or securing *** or affording evidence.”

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