Strode v. Strode

• Decision Date: 26 February 1898
• Parties: STRODE v. STRODE
• Court: Idaho Supreme Court

52 P. 161

6 Idaho 67

STRODE v. STRODE

Supreme Court of Idaho

February 26, 1898

DIVORCE-SERVICE BY PUBLICATION.-All of the requirements of the statute authorizing service of summons by publication must be complied with to give the court jurisdiction.

SAME-WHAT NECESSARY TO GIVE JURISDICTION.-When the record fails to show that a copy of the summons was sent to the address of the defendant, when the order directs that to be done, service of the publication is not complete, and does not give the court jurisdiction.

SAME-PROOF OF SERVICE.-Unless affidavits are filed showing that all of the requirements of the statute authorizing service by publication have been complied with, the court has no jurisdiction to enter judgment and decree.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Affirmed.

Hawley & Puckett, for Appellant.

Affidavit and order for publication are not part of the judgment-roll. (Rev. Stats., sec. 4456; McCanley v. Folton, 44 Cal 355; In re Newman, 75 Cal. 215, 7 Am. St. Rep. 146 16 P. 887; Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec 742, and note; People v. Temple, 103 Cal. 447, 37 P. 414.) The affidavit to obtain service is not a jurisdictional fact. (Dore v. Dougherty, 72 Cal. 232, 1 Am. St. Rep. 48, 13 P. 621; Newcombe v. Newcombe, 13 Bush, 594; Thomas v. Mahone, 9 Bush, 125.) It will be presumed that evidence to establish the sufficiency of the service has been introduced. (Blasdell v. Kean, 8 Nev. 308; Gilpen v. Page, 1 Saw. 325, Fed. Cas. No. 5205.) The existence of any jurisdictional fact, not affirmed upon the record, will, upon a collateral attack, be presumed. (Freeman on Judgments, 124, 125; Wiggin v. Superior Court, 68 Cal. 400, 9 P. 646.) Where the record is silent as to a question of jurisdiction the judgment of the court cannot be collaterally impeached for any alleged want of jurisdiction over the parties to the decree. (Lawler v. White, 27 Tex. 353; Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742, and note; Cole v. Butler, 23 Mo. 401; 1 Black on Judgments, 263.) Whether summons was regularly issued or not is not a jurisdictional fact. (Dore v. Dougherty, 72 Cal. 232, 1 Am. St. Rep. 48, 13 P. 621; Dunham v. Wilfring, 69 Mo. 355; Casey v. People, 165 Ill. 49, 46 N.E. 7; Newman v. Bullock, 23 Colo. 217, 47 P. 379.)

W. E. Borah, for Respondent.

Whenever it appears, either from the records or by evidence outside, that the defendants were, at the time of the alleged service upon them, beyond the reach of the process of the court, the presumption ceases and the burden of establishing the jurisdiction over them is thrown upon the party who invokes the benefit of the judgment. So, too, the presumption ceases when the proceeding was not in accordance with the course of the common law. (Gray v. Larimore, 4 Saw. 639, Fed. Cas. No. 5721; Freeman on Judgments, 3d ed., 123, 127; Black on Judgments, sec. 279; Galpin v. Page, 18 Wall. 959.) The fact that the statute has been strictly followed must be proved no presumption of jurisdiction being indulged in. (Stewart on Jurisdiction, sec. 234; O'Dell v. Campbell, 9 Or. 298; Victor v. Davis, 11 Or. 447, 5 P. 750; Pennoyer v. Kneff, 95 U.S. 743; Cofield v. McClelland, 16 Wall. 331; Commonwealth v. Blood, 97 Mass. 538.) Statutes requiring service by publication are in derogation of the common law and must be strictly construed. (Forbes v. Hyde, 31 Cal. 35; People v. Huber, 20 Cal. 81; Baley v. Seaman, 30 Cal. 618; Scorpion v. Marsano, 10 Nev. 380; O'Dell v. Campbell, 9 Or. 298; Gray v. Larimore, 4 Saw. 639, Fed. Cas. No. 5721; Tunis v. Withrow, 10 Iowa 305, 77 Am. Dec. 117; Vizzard v. Taylor, 97 Ind. 93; Boyland v. Boyland, 18 Ill. 551; Black on Judgments, sec. 232; Earl v. McVeigh, 95 U.S. 503; Settlemier v. Sullivan, 97 U.S. 444; Cheely v. Clayton, 110 U.S. 701, 4 S.Ct. 328; Applegate v. Lexington, 117 U.S. 255, 6 S.Ct. 742.) The district court has no authority to render judgment by default against a defendant served with notice by publication when the record does not affirmatively show that the statute has been complied with. (McCraney v. Childs, 11 Iowa 54; Tooley v. Comely, 9 Iowa 240; McGahen v. Carr, 6 Iowa 331, 71 Am. Dec. 421, and note; O'Rear v. Lazarus, 8 Colo. 608, 9 P. 621.) No service or proof of service by mail. This renders the judgment wholly void. (Roberts v. Roberts, 3 Colo. App. 6, 31 P. 941; O'Rear v. Lazarus, 8 Colo. 608, 9 P. 621; Schart v. Schart, 116 Cal. 91, 47 P. 927.)

SULLIVAN, C. J. Huston and Quarles, JJ., concur.

OPINION

SULLIVAN, C. J.

This is an action for divorce on the ground of cruelty. The defendant answered the complaint denying the allegation of cruelty, and by cross-complaint asked that the marriage between himself and the plaintiff be annulled, for the reason that the plaintiff had a husband, from whom she had not been divorced, living at the time of the intermarriage of plaintiff and defendant. The trial court found that the charge of cruelty was not supported by the evidence, and also found that the allegations of the cross-complaint were true, and entered judgment and decree annulling the marriage as prayed for in the cross-complaint. A motion for a new trial was made by the plaintiff (appellant here), and overruled by the court. This appeal is from said order denying a new trial and from the judgment.

Numerous errors are specified, but, in our view of the case, it is only necessary to review those findings of fact on which the conclusion of law is based that the decree of divorce entered in the case of Deeds against Deeds was a nullity. The facts are substantially as follows: On the fourth day of July, 1880, the plaintiff married one Rufus M. Deeds at the town of Blanchard, in the state of Iowa. The plaintiff and her said husband, Deeds, came to Idaho in 1881; resided in Idaho until 1885; then went to Oregon, and returned to Idaho in 1886; and in 1888 returned to Oregon, and resided at Eugene, or near there. The plaintiff and her said husband separated in the spring of 1890. Plaintiff then went to the city of Portland, and engaged in the real estate business. On the fifth day of January, 1892, she returned to Boise City, Idaho; and on the second day of February, 1892, began a suit in the district court of Ada county to obtain a divorce from her said husband, Deeds. In the complaint she alleged, in substance, that she had been a resident of the state of Idaho since 1881; the marriage of herself and the defendant, Rufus M. Deeds; extreme cruelty as the grounds for divorce. A summons was duly issued on said second day of February, and returned and filed on the fourth day of said month. The return thereon recited that the defendant, Rufus M. Deeds, could not be found in Ada county. Thereupon service was attempted to be made by publication. The affidavit for service of the summons by publication, made by the plaintiff in that case, is as follows:

"State of Idaho. County of Ada. ss.

"Flora A. Deeds, being first duly sworn, on her oath deposes and says that she is the plaintiff in the above-entitled action; that the complaint in said action was filed February 2, 1892, with the clerk of said court, and summons was thereupon issued; that said action is brought to dissolve the bonds of matrimony now existing between plaintiff and defendant; that the cause of action is fully set forth in plaintiff's verified complaint on file herein; that said defendant is now out of this state, and cannot, after due diligence, be found therein; that this affiant has inquired of the friends and acquaintances of the defendant, to wit, Mrs. A. Jane Williams, Mr. Frank C. Bond, David Spiegel and H. P. Nelson, as to the whereabouts of the defendant, and none of them know his present place of residence, unless it be Portland, Oregon; that when he (the defendant) left Boise valley he stated to his said friends that he was going to Portland, Oregon; that he went there, but as to whether he is there at the present time they have no knowledge, but that, if he had returned to this state, they, his friends, would have known of his return. This affiant therefore says that the defendant is not in this state, and that personal service of summons cannot be had on said defendant, Rufus M. Deeds, within this state, and prays for an order that service of the summons may be made by publication. FLORA A. DEEDS.

"Subscribed and sworn to before me this 18th day of February, A. D. 1892.

"CHAS. A. CLARK,

"Notary Public."

Upon reading and filing said affidavit, Honorable E. Nugent, judge of the district court of said Ada county, made an order directing that service of said summons be made by publication of the summons in the "Idaho Democrat," a newspaper published in Boise City, Idaho and also directed that a copy of the summons and complaint in said suit be deposited in the post office at Boise City, Idaho postage prepaid, and addressed to said defendant, Rufus M. Deeds, at Portland, Oregon. Said order was made on the nineteenth day of February, 1892. On the second day of December, 1892, said court made and filed the following judgment and decree of divorce:

"Be it remembered that on the second day of December, 1892, the same being the fifth judicial day of the third judicial court of the state of Idaho in and for Ada county, November term the Honorable Edward Nugent, sole judge, presiding, this cause of action coming on for hearing, the plaintiff appearing by her attorney, D. T. Miller and though the defendant having been duly served with due, legal and timely service with the original summons issued out of said court, of the pendency of this action, appeared not, and it was therefore ordered and adjudged that defendant be declared in default for not answering, which was duly entered. And be it further remembered that on...