Strecker v. Strecker

• Decision Date: 22 December 1926
• Docket Number: 12,394
• Parties: STRECKER v. STRECKER
• Court: Indiana Appellate Court

154 N.E. 503

86 Ind.App. 16

STRECKER v. STRECKER

No. 12,394

Court of Appeals of Indiana

December 22, 1926

Rehearing denied March 29, 1927.

From Cass Circuit Court; David C. Arthur, Special Judge.

Action by Lena Strecker against George Strecker for limited divorce in which the defendant filed a cross-complaint. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Jenkines & Jenkines, for appellant.

Rabb Mahoney, Fansler & Douglass, for appellee.

OPINION

NICHOLS, J.

Action by appellee for limited divorce for a period of ten years and the custody of a minor son of appellant and appellee, and alimony in the sum of $ 100,000, $ 100 per month for the maintenance, support and education of said minor son, and for the payment of all costs of this proceeding, including appellee's attorneys' fees.

Appellant filed cross-complaint praying for a divorce and custody of said minor son, to which appellee answered in denial.

Appellant filed demurrer to the complaint, which was overruled. Thereupon, appellant answered in two paragraphs, the first a general denial and the second a plea of condonation. Reply in general denial. Thereafter, appellee filed petition for leave to file a substituted affidavit with her complaint, which was granted and a substituted affidavit filed over the objection of appellant.

Appellant then filed a demurrer to the complaint, which was overruled, and the answer and reply as theretofore were refiled.

There was a trial which resulted in a finding for appellee. Appellant's motion in arrest of judgment and for a new trial were respectively and successively overruled, after which judgment was rendered for appellee, from which this appeal.

The substantial question which appellant presents, and which was presented by the demurrer to the complaint and by motion in arrest of judgment, is as to whether the court erred in assuming jurisdiction of the case for the reason that there was no proper affidavit of residence filed with the complaint. It is also contended that the court erred in permitting appellee to file a substituted affidavit. But these questions have been so clearly decided against appellant's contention in Eastes v. Eastes (1881), 79 Ind. 363, that we need to give them but little consideration. In that case, the defendant entered a special appearance and filed a motion to quash the summons for the reason that there was no proper affidavit filed. The plaintiff responded to the motion by filing a motion for leave to file a substituted affidavit, which motion was sustained by the court, and thereupon the plaintiff filed such substituted affidavit embracing therein the corrections suggested by the defendant's motion to quash summons. It was held that such affidavit was sufficient, and that it was not error to permit it to be filed, the court saying:

"Manifestly the legislative intent in the enactment of these provisions was to limit the operation of the statute to bona fide residents of the state, and to restrain and prevent the procurement of divorces 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...