State ex rel. Aldrach v. Morse

• Decision Date: 20 November 1906
• Docket Number: 1790
• Court: Utah Supreme Court
• Parties: STATE ex rel. ALDRACH v. MORSE, Judge

87 P. 705

31 Utah 213

STATE ex rel. ALDRACH v. MORSE, Judge

No. 1790

Supreme Court of Utah

November 20, 1906

Application for writ of mandate by the state, on relation of Emma K. Aldrach, against C. W. Morse, judge of the district court of the Third judicial district.

RELIEF GRANTED.

S. P Armstrong for petitioner.

S. R Thurman and Dey & Hoppaugh amici curiae.

FRICK J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

On the 14th day of July 1906, Emma K. Aldrach, the petitioner herein, filed her affidavit and petition in this court praying for a writ of mandate, wherein she states, in substance, the following facts: That on the 6th day of December, 1905, she duly filed her complaint against William K. Aldrach, her husband, in the district court of Salt Lake county, Utah in which, as appears therefrom, she alleged the necessary facts which entitled her to a decree of divorce upon the grounds of willful desertion and for willful failure to support. She alleged her residence as being and having continued to be in Utah ever since her marriage to said Aldrach, and that she and said Aldrach were married in Utah and were husband and wife. She further sets forth in her petition all the facts necessary to confer jurisdiction upon the district court aforesaid in an action for divorce granted upon what is generally known as "constructive service." It further appears that due service by publication was had in conformity to the law of this state, that the defendant in said action for divorce failed to appear therein, and that C. W. Morse, the judge of said district court, the respondent herein, upon a hearing of said cause, duly made and filed findings of fact and conclusions of law, in substance as follows: That the defendant in said action, William F. Aldrach, was duly served with summons by publication; that the petitioner and Aldrach were married at Salt Lake City, Utah on the 24th day of May, 1893, and are husband and wife; that the petitioner, plaintiff in said action, had been and was an actual bona fide resident of Salt Lake City for more than one year immediately preceding the commencement of said action; that the petitioner and said Aldrach cohabited together as husband and wife, and lived here and had their marriage domicil in the state of Utah until September, 1904, when said Aldrach willfully, and without cause or excuse, deserted and abandoned the petitioner, and continues to willfully and without cause so to do; further, that said Aldrach being able so to do has willfully neglected to provide for petitioner and her child, the fruit of said marriage, the necessaries of life, and continues to neglect to so provide for her and said child. As conclusions of law the said court found that the petitioner, plaintiff in said action, is entitled to a decree of divorce, but concludes, further, inasmuch as said Aldrach did not appear in said action for divorce and was served with process by publication only, while being absent from the state of Utah that therefore the district court had not acquired jurisdiction of said Aldrach, and upon that ground alone refused to grant petitioner the decree of divorce. It further appears from the record in said case that said Aldrach was a nonresident of the state of Utah at and prior to the time said action for divorce was commenced, and was a resident of the territory of Arizona. The foregoing is a mere skeleton or outline of the facts stated in the petition upon which the petitioner prayed that the Honorable C. W. Morse, as judge of said district court, be required to show cause to this court why a peremptory writ of mandate should not issue against him requiring him to assume jurisdiction of said action for divorce and enter a decree in favor of the petitioner upon the findings of fact and conclusions of law made and signed by him in said case. The petition is duly verified, and upon being presented to this court the then Chief Justice issued an alternative writ of mandate directed to the respondent herein, of which he duly admitted service, and in due time filed his answer thereto, in which he practically admits all the facts stated in said petition, but states that he is advised that in virtue of a decision in the case of Haddock v. Haddock, rendered by the Supreme Court of the United States, 26 S.Ct. 525, 50 L.Ed. 867, an enforceable decree of divorce could not be rendered in a case where the service upon an absent defendant therein was by publication only, and no appearance by him was made in the case, and that upon that ground alone he refused to render a decree of divorce in the action aforesaid. The applicant will be designated "petitioner," and the judge will be styled "respondent" in this opinion.

The only question for solution upon the foregoing facts is should the respondent be required to assume jurisdiction of the divorce action, and in view of the findings of fact and conclusions of law made and filed by him, as judge of the district court of Salt Lake county, proceed to a completion of said action by granting a final decree of divorce to the petitioner? It seems to us there is but one answer possible to the foregoing proposition, which must be in the affirmative. Every essential element necessary under our law, both substantive and of procedure, is present in the divorce proceeding to entitle the petitioner to a decree of divorce. Neither do we think that the case of Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, can possibly be applied so that a different result could be reached. As we read that case, the one essential to confer jurisdiction upon a state court in divorce...