Wills v. Wills

• Decision Date: 13 December 1911
• Docket Number: 21,992
• Citation: 96 N.E. 763,176 Ind. 631
• Parties: Wills v. Wills
• Court: Indiana Supreme Court

96 N.E. 763

176 Ind. 631

Wills v. Wills

No. 21,992

Supreme Court of Indiana

December 13, 1911

From Boone Circuit Court; Willet H. Parr, Judge.

Suit by John E. Wills against Fannie Wills. From a decree for plaintiff, defendant appeals. Transferred from Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.

Reversed.

Terhune & Adney and Blacklidge, Wolf & Barnes, for appellant.

Shelby & Worley, for appellee.

OPINION

Monks, J.

Appellee brought this suit against appellant to obtain a divorce alleging facts which appellee claims constitute cruel and inhuman treatment. The complaint was in one paragraph, and was answered by a general denial. A trial of the cause resulted in a finding for appellee, and a judgment granting him a divorce. A motion for a new trial was overruled.

Appellant claims that as the transcript does not show that appellee with his petition, filed with the clerk of the court below "an affidavit signed and sworn to by himself, stating particularly the place, town, city or township in which he has been a resident for the last two years past and stating his occupation," as required by § 1066 Burns 1908, § 1031 R. S. 1881, the court below had no jurisdiction to hear the case, and the judgment must be reversed. The part of said section relied upon reads as follows: "And the plaintiff shall, with his petition, file with the clerk of the court an affidavit subscribed and sworn to by himself, in which he shall state the length of time he has been a resident of the State, and stating particularly the place, town, city or township in which he has resided for the last two years past, and stating his occupation, which shall be sworn to before the clerk of the court in which said complaint is filed."

It was the legislative intent in the enactment of said provisions to limit the operation of the statute to bona fide residents of the State, and to prevent nonresident persons from procuring divorces through fraud or imposition practiced upon the court. The affidavit required by said section was intended for the good of the public at large, and not for the convenience or benefit of the parties to the suit.

Said § 1066 also provides that a "divorce may be decreed by the superior and circuit courts of this State, on petition filed by any person who, at the time of the filing of such petition, is and shall have been a bona fide resident of the State for the last two years previous to the filing of the same, and a bona fide resident of the county at the time of and for at least six months immediately preceding the filing of such petition; which bona fide residence shall be duly proven by such petitioner, to the satisfaction of the court trying the same, by at least two witnesses who are resident freeholders and householders of the State."

It has been held by this court that the requirement in said section, that the bona fide residence of the petitioner shall be proved by at least two witnesses who are resident freeholders and householders of the State, is mandatory. Driver v. Driver (1899), 153 Ind. 88, 54 N.E. 389, and cases cited; Prettyman v. Prettyman (1890), 125 Ind. 149, 25 N.E. 179.

In the case last cited, this court said on page 150: "A mandatory provision of the statute, which requires proof by witnesses who possess special qualifications, cannot be satisfied or set aside by a tacit agreement or admission of the defendant, nor in any other manner. There must be actual proof to the satisfaction of the court by witnesses possessing the statutory qualifications. This is the positive requirement of a statute which was enacted to prevent nonresidents of the State, over whose marital status our courts can acquire no jurisdiction, from obtaining fraudulent divorces. In every divorce suit the State, for the enforcement of its policy concerning the marital relation, constitutes the third party, and no admission can be made by the other parties which will affect the public interest."

In the case of Eastes v. Eastes (1881), 79 Ind. 363, 368, this court held that the provision of said section, requiring the filing of said affidavit, was mandatory.

It has been held in other jurisdictions that the provisions of statutes requiring the verification of pleadings and the filing of affidavits in divorce cases are mandatory, and cannot be waived by any act of the defendant, and the affidavit must contain all the things required by the statute. Hinkle v. Lovelace (1907), 204 Mo. 208, 102 S.W. 1015, 11 L. R. A. (N. S.) 730 and cases cited, 120 Am. St. 698; Ayres v. Gartner (1892), 90 Mich. 380, 51 N.W. 461; Nichols v. Nichols (1901), 128 N.C. 108, 38 S.E. 296; Hopkins v. Hopkins (1903), 132 N.C. 22, 24, 43 S.E. 508; Martin v. Martin (1902), 130 N.C. 27, 40 S.E. 822; Holloman v. Holloman (1900), 127 N.C. 15, 37 S. E. 68; Clark v. Clark (1903), 133 N.C. 28, 30, 45 S.E. 342; Kinney v. Kinney (1908), 149 N.C. 321, 325, 63 S.E. 97; Johnson v. Johnson (1906), 142 N.C. 462, 55 S.E. 341; Rayl v. Rayl (1900), 64 S.W. 309; DeArmond v. DeArmond (1892), 92 Tenn. 40, 20 S.W. 422. See, also, Rumping v. Rumping (1907), 36 Mont. 39, 12 L. R. A. 1197, 91 P. 1057 and note.

It is evident that where it is not shown by the transcript on appeal that an affidavit of the petitioner was filed as required by § 1066, supra, the cause must be reversed.

If this were a collateral instead of a direct attack upon the judgment, we would have a different question.

After the appeal of this cause was perfected, appellee commenced a proceeding in the court below to procure a nunc pro tunc entry, showing that appellee filed with his petition for a divorce in the court below an affidavit, in all respects in compliance with the requirements of § 1066, supra. Notice thereof was given to appellant who appeared and contested said proceeding. The cause was heard by the court, and judgment nunc pro tunc was rendered, showing that an affidavit, as required by said section, was filed by appellee, a copy of which affidavit was set forth in said judgment. This judgment nunc pro tunc was rendered long after said divorce case had ceased to be in...