Wieser v. Wayne Circuit Judge , 247 Mich. 52 ( 1929 )

Frank G. Wieser filed a bill of complaint in Wayne circuit court in chancery for divorce against his wife, petitioner herein. An order of publication was made. No personal service of process was made on petitioner, she being a resident of Heidelberg, Germany. Evidently she obtained a copy of the order of publication and bill for divorce and employed an agent who wrote a letter to the court January 3, 1920. The decree of divorce granted was based in part upon a so-called answer of defendant. It so recites. The letter above referred to was treated by the trial court as an answer. The decree of divorce recites that defendant has answered. An answer constitutes an appearance. Golden Star Lodge No. 1 v. Watterson, 158 Mich. 696 (133 Am. St. Rep. 404); Rosenthal v. Rosenthal, 151 Mich. 493;Attorney General v. Booth Co., 143 Mich. 89; Hicks v. Steel,126 Mich. 408; Improved-Match Co. v. Fire Insurance Co.,122 Mich. 256; Crane v. Hardy, 1 Mich. 56; Falkner v. Beers, 2 Doug. 117; 4 C. J. p. 1335. Defendant, having appeared and answered, was entitled to notice of all subsequent proceedings in the divorce case. Herman v. Wayne Circuit Judge, 236 Mich. 604 . She had no such notice. The decree was granted without further notice to defendant.

There are three parties to every divorce proceeding — the husband, the wife, and the State. People v. Dawell, 25 Mich. 247 (12 Am. Rep. 260); Ritzer v. Ritzer, 243 Mich. 406. The State being a party to every divorce proceeding, a decree of divorce may not be had without compliance with all the formalities prescribed by law. Ritzer v. Ritzer, supra; 19 C. J. p. 19. The parties to a divorce case other than the State can waive nothing essential to the validity of the proceedings. 19 C. J. pp. 20, 21. In this case the prosecuting attorney entered his appearance. In the report filed by him he asked that "if decree is granted, the question of the custody of the minor child and alimony should be reserved until the same can be determined upon proper future application." This was not done. In the decree no mention is made of the minor child. No provision was made for its care and support. No reservation of the question was made in the decree, as recommended by the prosecuting attorney. No such consideration was given to the rights of the State as contemplated by the statute (3 Comp. Laws 1915, § 11433).Willcox v. Wayne Circuit Judge, 83 Mich. 1.

If there was an appearance by defendant, as seems to have been the view of the trial court, the calendar entries do not show it. They do not indicate defendant entered an appearance. They do not show she filed an answer. They do show a letter was received and filed February 3, 1920. This letter, in the German language, denied all the material allegations of the bill of complaint. It was not in the English language as required by the positive provisions of statute (3 Comp. Laws 1915, § 12260). Schaale v. Wasey, 70 Mich. 414; Auditor General v.Hutchinson, 113 Mich. 245; Visscher v. Ottawa Circuit Judge,116 Mich. 666; 31 Cyc. 78. This court cannot give effect to pleadings tendered or filed in the German language any more than those in Chinese, Russian, or Hottentot. This letter was not considered by counsel for plaintiff in the divorce case as an answer. He filed an affidavit of nonappearance, an order proconfesso, and an affidavit of regularity. In the affidavit of nonappearance, he swears he

— "has not received any notice that an appearance has been entered in this cause by or on behalf of the said defendant, Susanna Wieser, nor has the appearance of said defendant, Susanna Wieser, been entered therein, as appearing by the records of this court."

The order pro confesso recites the filing of the proof of publication of the order of publication and "the time limited in said order for the entering of such appearance, and on filing due proof that said defendant, Susanna Wieser, has not appeared in said cause," the bill is ordered taken as confessed, and an affidavit of regularity filed on the same day recites "that the said bill is taken as confessed by said defendant for want of an appearance."

If the defendant appeared and filed an answer, not only were the affidavits of nonappearance and regularity false, but all proceedings to take the bill as confessed were void. If the letter constituted an appearance and answer, as the court recited in the divorce decree, then all proceedings to enter the default of defendant in the divorce case were void, because, having entered her appearance and filed an answer, she was entitled to notice of all subsequent proceedings.

The calendar entries show that no further proceedings were had or taken to enter defendant's default after the default of the defendant entered as above recited. The decree of divorce, having been based upon the default entered, shows by its own recitals the court was without jurisdiction to make it.

Divorce, being a statutory proceeding, the jurisdiction of the court is not helped by any consideration of general equities. Haines v. Haines, 35 Mich. 138; West v. West,241 Mich. 679; White v. White, 242 Mich. 555. In any event, "failure to provide in the decree for maintenance of a minor child does not prevent the court from afterwards, on the petition of one of the parents, making the proper provision. 3 Comp. Laws 1915, § 11408." West v. West, supra.

The friend of the court recommended, August 20, 1927, the default be set aside and the decree vacated. September 19, 1927, he recommended the "decree be not vacated and that an order be made amending said decree to provide for payment of permanent alimony for the support of the minor child." Both these recommendations were disregarded, and defendant's petition dismissed. Defendant's consent, by laches or otherwise, cannot confer jurisdiction. The writ should issue as prayed.

NORTH, FEAD, FELLOWS, and McDONALD, JJ., concurred with POTTER, J.