Stewart v. Stewart

• Decision Date: 19 February 1902
• Docket Number: 4,028
• Citation: 62 N.E. 1023,28 Ind.App. 378
• Parties: STEWART v. STEWART
• Court: Indiana Appellate Court

62 N.E. 1023

28 Ind.App. 378

STEWART v. STEWART

No. 4,028

Court of Appeals of Indiana

February 19, 1902

From Marion Circuit Court; H. C. Allen, Judge.

Suit by Ida M. Stewart against Lewis C. Stewart for divorce. From a judgment for plaintiff, defendant appeals.

Affirmed.

Pierce Norton, for appellant.

W. J Beckett, for appellee.

OPINION

COMSTOCK, C. J.

This cause was transferred from the Supreme Court. Action for divorce. Appellee was plaintiff below. Issues were formed the case tried and decree rendered in favor of appellee. The errors assigned are: (1) That the court erred "in overruling appellant's motion for a new trial on allowance made to appellee." (2) In overruling appellant's motion for a new trial.

The first specification of error presents no question. The allowance complained of is an interlocutory one which the court was authorized, under § 1054 Burns 1901, § 1042 R. S. 1881, to make, and from which a right of appeal is given. The appeal may be taken directly from the order making the allowance, or the action of the court granting or refusing the allowance may be reviewed on an appeal from final judgment. Taylor v. Richardson, 2 Ind.App. 452, 28 N.E. 205, and authorities cited. The making of such order is not a cause for a new trial. It is the subject of an independent assignment of error. A trial is a judicial examination of the issues. Fisk v. Baker, 47 Ind. 534; Tyler v. Bowlus, 54 Ind. 333; Tibbetts v. O'Connell, 66 Ind. 171. The granting of an allowance in a suit for divorce is not an examination of the issues involved, is not a trial.

Counsel for appellant insists that the trial court erred in overruling his motion to set aside the issuing of summons, and the service thereof, and to dismiss the complaint, for the reason that the plaintiff did not file with the complaint, with the clerk of the court, an affidavit subscribed and sworn to by herself stating the length of time she had been a resident of the State, as provided in § 1043 Burns 1901, § 1031 R. S. 1881. The question is presented only by motion for new trial, and goes to the jurisdiction of the trial court. In Tyler v. Bowlus, 54 Ind. 333, it is expressly held that the ruling of the court upon such motion is not a cause for a new trial. But for the consideration of this case, conceding that the question is properly presented, we are of the opinion that there is a substantial compliance with the statute. The language of the complaint is as to residence "That the plaintiff is now and has been for more than two years last past a bona fide resident of the State of Indiana, and for more than six months last past a bona fide resident of the county of Marion, in said State, and has lived for more than two year last past in the city of Indianapolis, Indiana, and that her occupation is that of housewife. The complaint is sworn to before the clerk of the Marion Circuit Court. Counsel for appellant also cite Eastes v. Eastes, 79 Ind. 363.

The position of appellant is founded upon the proposition that the practice in divorce cases is controlled by the divorce act and not by the general practice act. In the case last cited appellant's counsel contended that the summons should have been quashed and the suit dismissed. (1) Because the affidavit filed with appellee's complaint was sworn to before a notary public and not before the clerk of the circuit court as contemplated by the statute. (2) Because said affidavit was dated on April 27, 1879, nearly six months prior to the date of the filing of the complaint and affidavit. (3) Because there was no affidavit filed with appellee's complaint showing that she was a resident of Hendricks county, Indiana, at the time she commenced the suit. In the course of the opinion the court stated that these provisions of the statute were mandatory and that they were so far imperative as that there should be in every case a substantial compliance with their requirements. The court further said that "manifestly the legislative intent in the enactment of this provision was to limit the operation of the statute to bona fide residents of the State, and to restrain and prevent the procurement of divorce by non-residents through fraud or imposition practiced on the courts. Such substantial compliance with the terms of the statute as may be necessary to carry out and accomplish the purpose and intention of the legislature, the courts should encourage and require; but we fail to see that any good result would or could be accomplished by giving these statutory provisions the rigid construction which the appellant's counsel insists should be placed upon them." In Brown v. Brown, 138 Ind. 257, 37 N.E. 142, the petition was sworn to before a justice of the peace. The Supreme Court held that such oath might be taken before any officer authorized to administer oaths. In the case at bar, the purpose of the statute is accomplished by the statements of the complaint, verified, heretofore set out, as to the residence of the petitioner. The separate affidavit could do no more than does the complaint verified by the petitioner. In an action of replevin, where an immediate delivery of the property is sought, the statute requires an affidavit to be made stating certain facts. It has been held that in such an action, a complaint which...