Young v. Young

• Decision Date: 01 January 1873
• Parties: ENOCH C. YOUNG v. MARY E. YOUNG.
• Court: Minnesota Supreme Court

18 Minn. 72

ENOCH C. YOUNGv.

MARY E. YOUNG.

Supreme Court of Minnesota.

Appeal by defendant from a judgment of the district court, counties of St. Louis, Lake, Carlton, and Itasca.

Brisbin & Palmer, for appellant.

Smith & Gilman and Egan & Billson, for respondent.

BERRY, J.

This is an appeal from a judgment or decree dissolving the bonds of matrimony between plaintiff and defendant, and awarding to the former the custody of the minor children of their marriage. The defendant makes several objections to the proceedings in the action, which we will consider in the order in which they are presented.

1. She insists that the complaint does not state facts sufficient to constitute a cause of action, because it does not contain the name of the court in which the action is brought, nor show in what county the plaintiff resides, nor that the alleged adultery was not condoned, or was not committed by the procurement or with the connivance of the plaintiff. The complaint is entitled as follows: "State of Minnesota, district court, seventh district, counties of St. Louis, Lake, Carlton, and Itasca." The title being part of the complaint, (Gen. St. c. 66, § 73,) the counties of Lake, Carlton, and Itasca being attached to St. Louis for judicial purposes, (Gen. St. c. 64, § 33,) so that the title is the proper one, (Laws 1867, c. 112, § 1,) and the court held for those counties being that in which this action was brought, the complaint in this case does contain the name of such court as required by section 11, c. 62, Gen. St.

It is not necessary that the complaint should show in what county the plaintiff resides, (chapter 62, Gen. St. § 11,) the statute only requiring that the action shall be commenced in such county. Id. § 10. Nor is it necessary that the complaint should show that the adultery upon which the action is founded was not condoned, or was not committed by the procurement or with the connivance of the plaintiff. These are matters of defense, the allegation of which (under the familiar rule) would properly come from the defendant in the first instance, so that they need not be anticipated in the complaint. 2 Bish. Mar. & Div. (4th Ed.) §§ 333, 341, and cases cited. See, also, numerous forms. Id. § 770 et seq.

2. Defendant claims that service of the summons and complaint was not duly made and proved, the affidavit of service being insufficient in substance, and being verified before one of plaintiff's attorneys of record. Service in this case was made by a private person. Section 53, c. 66, Gen. St., enacts that "proof" of service by a private person "shall be * * * his affidavit." This must mean that his affidavit showing that he performed the acts necessary to constitute service under the statute shall be "proof" of service. The affidavit in this instance was sufficient under the statute, but did not comply with rule 30, Dist. Ct. Rules, (6 Minn.,) because it did not state that the person making the service knew the person served to be the defendant. Without considering any other objections to these rules, it is enough to say now that they were valid only so far as "not inconsistent with the laws of this state," and the statute, having declared an affidavit such as was made in this case sufficient "proof" of service, a rule which required more was inconsistent with such statute, and therefore unauthorized. See Fagebank v. Fagebank, 9 Minn. 72, (Gil. 61.)

The answer to the objection that the affidavit of service was sworn to before one of plaintiff's attorneys of record is similar. The attorney was a notary public, and therefore under section 4, c. 26, Gen. St., which confers upon "each notary public" power "to administer all oaths required or authorized by law to be administered in this state," was empowered to administer the oath in this instance, notwithstanding rule 5, Dist. Ct. Rules. See, also, Althause v. Radde, 3 Bosw. 434.

3. The affidavit of default in this case is entitled "State of Minnesota, Saint Louis county, district court, seventh judicial district, Enoch C. Young, plaintiff, against Mary E. Young, defendant." The jurat has no venue (unless the above be such) and is as follows: "Sworn and subscribed to before me this fourth day of May, A. D. 1870, (signed) Albert Armstrong, clerk district court, Ramsey county," the seal of said court being affixed.

By chapter 62, Laws 1868, it is enacted that clerks of district courts "shall have power within their respective jurisdictions to administer all oaths," etc. In accordance with the familiar rule, the presumption would be that the clerk, being a public officer, acted within his jurisdiction in administering the oath in this case; in other words, that he administered the same in Ramsey county. Barnard v. Darling, 1 Barb. c. 219; Mosher v. Heydrick, 45 Barb. 552. From the position which the words "State of Minnesota, Saint Louis county," occupy at the head of this affidavit, they might be regarded — as in Rahilly v. Lane, 15 Minn. 447, (Gil. 360) — as intended to designate the venue or place at which the oath was administered, or they might be regarded as being part (though not perfect) of the title of the action, and as used simply for the purpose of identifying the action to which the affidavit relates. This alternative being open, we are of opinion that the presumption that the clerk acted within his jurisdiction is not overthrown by the doubt or ambiguity in reference to the purpose of the words referred to, but that doubt is be resolved (as it may be) in favor of the presumption. This would leave the jurat without any venue. But, while it is proper and usual to prefix a venue to an affidavit and particularly desirable where the officer administering the oath has jurisdiction in more than one county, since the venue stated is prima facie, the real venue, (Mosher v. Heydrick, supra,) we are of opinion that the absence of a venue is not fatal to an affidavit. Rex v. Emden, 9 East, 437. Such...