Wiggins v. Wiggins, 2058.

• Decision Date: 27 September 1957
• Docket Number: No. 2058.,2058.
• Parties: Carlisle Bush WIGGINS, Appellant, v. William McKinley WIGGINS, Appellee.
• Court: D.C. Court of Appeals

135 A.2d 154

Carlisle Bush WIGGINS, Appellant, v. William McKinley WIGGINS, Appellee.

No. 2058.

Municipal Court of Appeals for the District of Columbia.

Argued September 9, 1957.

Decided September 27, 1957.

Catherine U. Welch, Washington, D. C., for appellant.

William J. Garber, Washington, D. C., for appellee.

Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.

HOOD, Associate Judge.

This appeal presents the question whether in a suit for divorce in the Domestic Relations Branch of the Municipal Court, valid service of process may be made on a nonresident defendant by personal service outside the District, or must resort be had to service by publication. The question arises because of certain statutory enactments. In Section 105 of our original Code of 1901 (now appearing in Section 13-108 of the 1951 Code) it was provided that in various types of actions, including divorce, publication might be substituted for personal service of process on nonresident defendants. In 1920 a new paragraph was added to Section 105, providing for personal service of process outside the District on nonresident defendants, which service should have "the same effect and no other as an order of publication duly executed." Act of April 19, 1920, 41 Stat. 556, Chap. 153. In 1956 there was created a Domestic Relations Branch in the Municipal Court and it was given "exclusive jurisdiction over all actions for divorce," which jurisdiction had previously existed in the United States District Court for the District of Columbia. Code 1951, Supp. V, § 11-758 et seq. It was provided that service of process for the Domestic Relations Branch should be made by the United States marshal and that: "Service of process * * * may also be had by publication in the same manner as service of process is had by publication for the United States District Court for the District of Columbia."

In this case a nonresident defendant was personally served by a United States marshal in the State of Illinois, and on motion of defendant's appointed counsel, the trial court quashed the service. It was the view of the trial court that since the statute creating the Domestic Relations Branch authorized service on a nonresident defendant by "publication" and made no reference to personal service out of the District, service on nonresidents was restricted to service by publication.

It is true that service by publication and personal service outside the jurisdiction are two distinct forms of service. Until the new paragraph was added to our Code section in 1920, service on nonresidents could be effected only by publication. The term "publication" does not in and of itself include any other form of service; and our present Code section contains two paragraphs providing for two methods of serving nonresidents. In Gaines v. Gaines, 81 U.S.App.D.C. 260, 261, 157 F.2d 521, 522, it was said: "There is no relation between the two literary paragraphs of § 108 except that they deal with the common subject of providing a method to obtain jurisdiction over a non-resident for the purpose of entering judgment in a proceeding in rem, and except that the personal service...