Wills v. Wills

• Decision Date: 13 December 1911
• Docket Number: No. 21,992.,21,992.
• Citation: 96 N.E. 763,176 Ind. 631
• Parties: WILLS v. WILLS.
• Court: Indiana Supreme Court

176 Ind. 631

96 N.E. 763

WILLS

v.WILLS.

No. 21,992.

Supreme Court of Indiana.

Dec. 13, 1911.

Appeal from Circuit Court, Boone County; W. H. Parr, Judge.

Action by John E. Wills against Fannie Wills. Judgment for plaintiff, and defendant appeals. Reversed.

Transferred from the Appellate Court under the act of 1901 (Acts 1901, c. 259), being section 1405, Burns' Ann. St. 1908.

Terhune & Adney and Blacklidge, Wolf & Barnes, for appellant. Shelby & Worley, for appellee.

MONKS, J.

Appellee brought this action against appellant to obtain a divorce, based under allegations which appellee claims constitute cruel and inhuman treatment. The complaint, which was in one paragraph, was answered by 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.

[1] 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 section 1066, Burns' 1908, 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 restrain and prevent the procurement of divorces by nonresidents 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 action. Said section 1066, supra, also provides that “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. Prettyman v. Prettyman, 125 Ind. 149, 25 N. E. 179;Driver v. Driver, 153 Ind. 88, 54 N. E. 389, and cases cited. In Prettyman v. Prettyman, supra, this court said on page 150 of 125 Ind., on page 179 of 25 N. E.: “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 Eastes v. Eastes, 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, 204 Mo. 208, 102 S. W. 1015, 11 L. R. A. (N. S.) 730, 120 Am. St. Rep. 698, and cases cited: Ayres v. Gartner, 90 Mich. 381, 51 N. W. 461;Nichols v. Nichols, 128 N. C. 108, 38 S. E. 296;Hopkins v. Hopkins, 132 N. C. 23, 24, 43 S. E. 508;Martin v. Martin, 130 N. C. 27, 40 S. E. 822;Halloman v. Halloman, 127 N. C. 15, 37 S. E. 68;Clark v. Clark, 133 N. C. 28, 30, 45 S. E. 342;Kinney v. Kinney, 149 N. C. 321, 325, 63 S. E. 97;Johnson v. Johnson, 142 N. C. 462, 55 S. E. 341;Rayl v. Rayl (Tenn. Ch. App.) 64 S. W. 309;De Armond v. De Armond, 92 Tenn. 40, 20 S. W. 422. See, also, Rumpling v. Rumpling, 36 Mont. 39, 91 Pac. 1057, 12 L. R. A. (N. S.) 1197, and note.

[2] It is evident that on appeal, where it is not shown by the transcript that an affidavit of the petitioner was filed as required by said section 1066, supra, that the cause must be reversed. If this were a collateral, instead of a direct, attack upon the judgment, we would have a different question.

[3] 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...