Wortman v. Wortman , 17 Abb. Pr. 66 ( 1863 )

Sutherland, P. J.

—As this was an action for divorce, and as it appears that since the judgment of divorce was obtained the plaintiff has married again, I have arrived at the conclusion, that the defendant’s motion, at the special term, should have been granted only after the gravest and most careful consideration, and I may say with great hesitation. But I am convinced, that to hold that the affidavit upon which the order for publication was made in this action authorized such order, would be establishing or approving a most mischievous and unauthorized precedent.

By the Code (§ 135), “ Where the person on whom the service of the summons is to be made, cannot, after due diligence, be found within the State, and that fact appears by affidavit to the satisfaction of the court, or a judge thereof, &e., and it in like manner appears that a cause of action exists against the defendant, in respect to whom the service is to be made, &e., such court or judge may grant an order, that service be made by the publication of the summons,” in certain cases particularly specified in the section; the last of which is, “where the'action is for divorce, in the cases prescribed by law.”

How the affidavit of the attorney for the plaintiff, upon which the order for publication was made, states “ that the defendant resides at Horwalk, in the State of Connecticut, as deponent is informed and believes to be true, and is not, and has not been a resident of this State for more than eighteen months; that by reason of such non-residence, deponent cannot have the said summons and complaint served on her within this State.” This is all there is in the affidavit, claimed as showing, or tending to show, that the defendant could not, after due diligence, be found within the State.

In my opinion, the affidavit, so far from showing or stating any fact to show, that the defendant could not, after due diligence, be found within the State, contains a confession on its face, that no efforts or attempts whatever had been made to find the defendant within the State, because the defendant was a non-resident, or the affiant had been informed and believed" she was a non-resident, and had been for eighteen months. The purport of the statement in the affidavit above quoted, plainly is, the defendant resides at Norwalk, in Connecticut, as I am informed and believe; -she has not been a resident of this State for more than eighteen months; and, therefore, no effort or attempt has been made to find her within the State. Construe the affidavit most favorably to the plaintiff, and say that only the allegation, that the defendant resided at Norwalk, was intended to be made on information and belief; and that the allegation, that she had -not been a resident of this State for more than eighteen months, was intended to be made positively, and of the affiant’s own knowledge; and yet, we cannot hold that the affidavit was sufficient to authorize the order for publication, without disregarding, or nullifying the requirement of the Code, that it must appear by affidavit, to the satisfaction of the court or judge, that the person on whom the service of the summons is to be made, cannot, after due diligence, be found within the State; for the section of the Code containing such requirement, assumes that though the defendant be a non-resident, yet, that perhaps he may be found within the State, and plainly contemplates that some effort shall be made to find and serve the defendant within this State, though he or she he a non-resident.

Had the affidavit in this case stated, generally, that after due diligent search or inquiry, the defendant could not be found within the State; or had it presented for the discretion of the judge any fact to show that there had been any diligence or effort to find the defendant within the State, the case would have been very different; but viewing the allegation of the non-residence of the defendant, not as an allegation of a fact addressed to the discretion of the judge, to show any attempt or effort to find the defendant, or even inquiry for her, within the State; but as an allegation made by way of excuse, for not having made any such attempt, effort, or inquiry, I cannot avoid the conclusion, that the affidavit did not authorize the order of publication, and that such order, and the subsequent proceedings, were irregular and void.

' It would appear from the order for publication, that this is the correct view of the affidavit; for the 'order recites: “It appearing to my satisfaction, by an inspection of the summons and complaint herein, and from the affidavit of the attorney for the plaintiff, that the summons and complaint has been duly filed herein, and that due diligence to serve the same has been made, but without success, as the defendant does not reside within the State, but resides at Horwalk, in the State of Connecticut,” &c.

Judge Allen says in Cook a. Farmer (12 Abbotts’ Pr., 359), “But the statutory proceedings for acquiring jurisdiction of1 absent defendants, must be strictly complied with to give the court jurisdiction. The jurisdiction is strictly statutory, and can only be acquired in the mode prescribed by the statute.” (Hallett a. Righters, 13 How. Pr., 43; Brisbane a. Peabody, 3 Ib., 109; Kendall a. Washburn, 14 Ib., 380. See, also, Van Wyck a. Hardy, 11 Abbotts’ Pr., 473; S. C., 20 How. Pr., 227.)

This last case certainly went to the very verge of reasonableness, in holding the affidavit sufficient to satisfy the judge of the non-residence of the defendants, and of the inability to find them in this State, and to confer jurisdiction on the judge.

The affidavits read in behalf of the plaintiff on the motion, tending to show that the defendant was, in fact, not within tlks State when the order for publication was made, plainly are of no importance on the question, whether the order of publication was authorized by the affidavit on which the order was made. The question is, whether the order for publication was authorized by the affidavit, on which the order for publication was made. I think it was not, and therefore I am of the opinion, that the order appealed from should be reversed with $10 costs, and that th,e judgment in this action should bex vacated.

Leoítabd, J., concurred.

Babhabd, J., dissented.