Lewis v. Lewis , 15 Kan. 181 ( 1875 )

The opinion of the court was delivered by

Brewer, J.:

The plaintiff, on the 5th of August 1873, filed his petition for divorce against the defendant, in the district court of Wabaunsee county, and at the September Term 1873 of said court obtained a decree of divorce. The service was by publication in the local paper, and by sending a copy of the petition and publication, as provided by § 641 of the civil code. Shortly after this decree, the plaintiff married one Miss Hafer, and by this last marriage had a child born to him. His second wife acted in good faith. His second wife, and the child, are alive, and living with the plaintiff. Such marriage and birth were prior to the proceedings of the first wife to set aside the decree. Before the September Term 1874 of said court, but after the September Term 1873 and the March Term 1874 had adjourned, the defendant filed her affidavit and answer, under §77 of the code, to set the decree aside, and to open- it, and to let her in to defend, on the ground that she had no actual notice of the pendency of the action before the decree was entered, and before the court adjourned at the September Term 1873. Upon the hearing of this application, the court found as- follows, to-wit:

“ lst.-That there was due and legal service made by publication in a newspaper, as prescribed by law. •

“ 2d.-That there was a copy of the petition and publication notice sent by mail, postage paid, as prescribed by § 641 of the civil code of 1868, on the 9th day of August 1873.

“3d.-That said copy of petition was not received by the defendant, who was then at Edinburgh, Scotland, until after the decree of divorce was rendered, and that no other service in the case was had or made than as above stated.

“4th.-That the defendant had no actual notice of the pend-ency of this suit until after the decree was rendered.”

And upon these facts the court made an order opening the decree, and letting the defendant in to defend the action. Was there error in this order? Sec. 72 enumerates the cases in which service by publication may be had, and among them expressly enumerates actions for divorce. No question therefore can be made as to the legality of the decree of September, 1873. Sec. 77, upon which this application was based, provides that, “A party against whom a judgment or order has been rendered without other service than by publication in a newspaper, may, at any time within three years after the date of the judgment or order, have the same opened, and be let in to defend. Before the judgment or order shall be opened the applicant shall give notice, * * * and make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense; but the title to any property, the subject of the judgment or order sought to be opened, which, by it, or in consequence of it, shall have passed to a purchaser in good faith, shall not be affected by any proceedings under this section, nor shall they affect the title of any property sold before judgment under an attachment.” The question of the permanence of a decree of divorce, when attacked either by proceedings in error, by motion to set aside, or by direct proceeding on account of fraud and imposition, has frequently been before the courts, and the decisions are far from uniform. In McJunkin v. McJwnJcin, 3 Ind. 30, a decree of divorce was rendered upon constructive service. The court held that a section of the statute, similar to our § 77 above quoted, was inapplicable, and partly because no provision was m'ade for a case like the one before us, a marriage intermediate the decree and the application. In Bascom v. Bascom, 7 Ohio, 465, the court decided that a decree of divorce was not the subject of review in the supreme court. It was conceded that the statute provided that divorce cases should be governed by the rules respecting proceedings in chancery, and that in chancery cases the right of review existed • but there was this difference : in divorce cases the testimony was oral, in chancery by deposition. Upon this difference the court concluded that there was no review of a decree of divorce. Manifestly a controlling consideration was the danger of intermediate marriage. It used this language in the opinion: “ When a divorce is granted, upon which one of the parties contracts new relations, and a third party acquires rights, it cannot be that a process could be had to reverse a decree, the consequences of which would be a severance of all those new relations. Such anomalous mischief cannot be engrafted on the practice of ,our courts, except by clear and explicit legislative enactment. That, we feel confident, can never take place. All the reasons that render a decision upon facts by a jury conclusive between the parties, unite in requiring that the decision of a court upon facts, on the hearing of a petition for a divorce, should be final, and stand beyond reach of judicial revision.” The same court subsequently, in Bingham v. Miller, 17 Ohio, 445, after deciding that the legislature had no power to grant divorces, yet in view of the fact that that power had been exercised without question for a series of years, and to hold the divorces void would bastardize many children, refused to disturb a divorce so granted. It also, in Parish v. Parish, 9 Ohio St. 534, decided that a decree of divorce obtained by fraud could not be set aside on an original bill filed at a subsequent term. The same doctrine wa’s announced in Green v. Green, 2 Gray, (Mass.) 361, Ch. Justice Shaw delivering the opinion. Yet in the same state, in Edson v. Edson, 108 Mass. 590, the supreme court sustained an application made by the defendant in the case itself, to open up the decree and be let in to defend, on the ground that the service, which was by publication, though regular on its face, and apparently good, had been secured by false and fraudulent representations as to residence of plaintiff, ignorance of defendant’s residence, etc., and that therefore no legal service had been made so as to give the court jurisdiction; and in the opinion it uses this language: “Reasons of public policy, or a regard to the consequences which might ensue to innocent parties from the exercise of a power to invalidate a decree of divorce after it had become res adjudieata, do not constitute sufficient reasons for a denial of ,the existence of the power.” In Dunn v. Dunn, 4 Paige, 425, service had been made of the subpoena outside of the state. On an application to set aside the decree, the chancellor held the service bad, but inasmuch as there had been a second marriage, while he permitted the question of the grounds for a divorce to be tried, refused to disturb the decree unless upon such trial it should appear that there were no sufficient evidence to sustain it. In other words, the case was to be tried after the decree. On the other hand, in Adams v. Adams, 51 N. H., a decree was set aside which had been obtained upon constructive testimony. In Weatherbee v. Weatherbee, 20 Wis. 499, service had been made by delivering a copy of the summons to the defendant outside of the state. A motion was made to set aside the decree, on the ground of irregularity in the service, and it was sustained. Cranch v. Cranch, 30 Wis. 667, in some respects resembles the case at bar. On an affidavit by the plaintiff of ignorance of defendant’s whereabouts, an order was made by a court commissioner for service by publication, publication made, and decree entered. There was a subsequent marriage, and after-begotten children.. On motion to set aside the decree, the order for publication was held void because made by one who, though a court commissioner, was attorney of th$ plaintiff, and because the affidavit of plaintiff was clearly shown to have been false and perjured testimony. In Allen v. Maclellan, 12 Penn. St. 328, C. J. Gibson uses the following strong language: “ It may seem an arbitrary act to expunge a sentence of divorce with a stroke of the pen, bastardize after-begotten children, involve an innocent third person in legal guilt, and destroy rights acquired in reliance on a judicial act which was operative at the time.” Yet the power of the court so to do was sustained.

It may be said in reference to the case before us, as distinguishing it from some that have been noticed, that it contains nothing, as shown by the findings of the court, to impeach the regularity and fairness of the proceedings. Whatever may be the merits,of the dispute between the parties, and whatever upon a hearing of both sides might have been the judgment of the court, it is plain that the steps pointed out by the law were fairly and correctly taken. Service was legally, and without any trick, falsehood, or imposition, made, and the decree was, when entered, in all respects legal and valid. It must be apparent too, from the cases noticed, that ofttimes the hardship of an adverse ruling, if it has not directly led to the decision made, has induced the court to magnify matters of minor importance into circumstances of controlling weight. At the risk of being subjected to a like criticism, we are constrained to hold, that §77 does not apply to proceedings for divorce. “Without other service than by publication in a newspaper,” is, by its terms, the test of a right to its provisions. It is true, that in § 72 it is said that “service may be made by publication * * * in actions to obtain a divorce, when the defendant resides out of this state.” And if this were the only provision, it would be difficult to deny the applicability of § 77. But in the article concerning divorce and alimony, art. 28 of the code, Gen. Stat., p. 757, §641, it is provided that, “when service by publication is proper, a copy of the petition, with a copy of the publication notice attached thereto, shall within three days after the first publication is made be inclosed in an envelope, addressed to the defendant at his or her place of residence, postage paid, and deposited in the nearest post-office, unless the plaintiff shall make and file an affidavit that such residence is unknown to the plaintiff, and cannot be ascertained by any means within the control of the plaintiff.” Now this a part of the service. Without it no decree can properly be entered. It is a precaution ordered by the legislature to guard against the danger of decreeing a divorce without the knowledge and presence of both parties. It may be very inadequate, but it is worth something. It is a step in the right direction. But whether adequate or not, it is the legislative direction, and as such may not be disregarded. It may be said that, as in this case, the copy of the petition may fail to reach the defendant in time for the trial, and that then there is no other notice than by the publication, and §77 should be held applicable. True, the mailed petition and notice may give no actual notice; neither may the publication. But each is an effort toward actual notice, and the two combined are requisite for legal service. Service by copy at the usual place of residence, is actual service. The copy may fail to reach the defendant; actual notice may not be received by him. But the service is complete, and a judgment rendered cannot be opened because rendered without notice. Service is not always equivalent to actual notice, and does not always result in actual knowledge. It is not the actual result of any particular step, which determines whether it is or is not a part of the service. It is enough that the legislature has constituted it a part. And where the legislature has not in terms declared it a part, if the obvious scope and purpose of the step required is to secure notice of the pendency of the suit, it may fairly be considered a part of the service. Again, it may be said that if an affidavit of ignorance is filed, as provided, no copy is mailed, and then the only notice would be by publication. If the affidavit was false, it would make a case much resembling those cited from 30 Wis., and 108 Mass. But it will be time enough to decide that question when it arises. The conclusion then, to which we have come, though, as we freely admit, with grave doubts, is, that the mailing of the copy of the petition and notice, as required by said § 641, is a part of the service, and that therefore, in a case where such mailing has been duly made in addition to the publication of notice in the paper, § 77 does not apply, and that a decree legally entered under those circumstances cannot be set aside upon the mere showing of actual ignorance of the pendency of the suit.

As the decree barring the defendant of any interest in' the plaintiff’s property follows from the divorce, we cannot open, the decree as to the one, while sustaining it as to the other.

The judgment will be reversed, and the case remanded with instructions to overrule the application to set aside the decree and let the defendant in to defend.

All the Justices concurring.