Meier v. Meier , 362 Mich. 653 ( 1961 )

362 Mich. 653 (1961) 107 N.W.2d 836

MEIER
v.
MEIER.

Docket No. 97, Calendar No. 48,473.

Supreme Court of Michigan.

Decided March 1, 1961.

George F. Roberts, for plaintiff.

Luther C. Green, for defendant.

DETHMERS, C.J.

Plaintiff filed a bill for divorce. He obtained an order for defendant's appearance under CL 1948, § 613.46, as last amended by PA 1958, No 228 (Stat Ann 1959 Cum Supp § 27.776), on the ground that she resided outside this State at the address set forth in his affidavit therefor. Publication of the order was had as in the ensuing section of the statute provided, but no copy was mailed to defendant by registered or certified mail nor was any proof of such mailing ever filed in the cause.

Plaintiff ultimately took a decree of divorce by default. A copy of the decree was mailed to defendant. She, thereupon, appeared specially and petitioned to have the decree set aside because no service had been made upon her by mail or otherwise. Plaintiff filed an answer to the petition admitting the above facts and pointing out that defendant's petition was not accompanied by an answer to his bill of complaint. The court denied the petition. Defendant appeals.

Plaintiff says that under CL 1948, § 613.47 (Stat Ann § 27.777), he had the option of serving personally, or by registered mail, or by publication; that publication, without mailing, was sufficient, citing Paynton v. Paynton, 194 Mich. 504.

Decree in Paynton was entered on July 8, 1915. It appears that there then was no statutory requirement as contained in CL 1948, § 613.49 (Stat Ann § 27.779), enacted in the judicature act of 1915 and made effective January 1, 1916,^[*] requiring such mailing. That section now expressly provides:

"In all cases except where personal service of such order shall have been had as hereinbefore provided, and excepting further in case of unknown heirs or other unknown defendants, a copy of such order shall be mailed to such absent, concealed or nonresident defendant at his last known post office address by registered mail, and a return receipt demanded therefor. Proof by affidavit shall be required of such mailing and the official return receipt therefor shall be attached to said affidavit if one shall have been received, which receipt shall be deemed sufficient proof of the service upon said defendant of such copy of said order. If such return receipt shall not be received then said order shall be published as hereinbefore provided."

There is no merit to plaintiff's contention that the last quoted sentence allows publication in lieu of such mailing. It does not permit publication instead of, but, rather, requires publication in addition to and after such mailing by registered mail, return receipt demanded, if such return receipt is not received.

The statutory requirements were not met here. They must be strictly complied with to confer jurisdiction upon the court over defendant. Campau v. Charbeneau, 105 Mich. 422.

Plaintiff refers to Michigan Court Rule No 28, § 4 (1945), which provides that in order to be entitled to an order setting aside his default in equity, a defendant must proffer a sworn answer showing a defense on the merits. This the defendant did not do here. The language of the rule itself, relating to defaults for want of appearance or answer, makes no mention of defaults irregularly entered without jurisdiction in the court over defendant. Defendant appeared specially to challenge the court's jurisdiction. She could not be required to appear generally by filing or proffering an answer. Schwab v. Mabley, 47 Mich. 512. She was entitled to an order setting aside the decree without first proffering an answer.

Reversed. An order may enter setting aside the decree. Costs to defendant.

CARR, KELLY, SMITH, BLACK, EDWARDS, KAVANAGH, and SOURIS, JJ., concurred.

NOTES

[*] See CL 1948, § 681.3 (Stat Ann § 27.3547). — REPORTER.