Klepfer v. Klepfer

Appellee brought this action to obtain a divorce from appellant. The petition was answered by a general denial, trial was had and a judgment was rendered granting appellee a divorce, from which this appeal was taken. Among the errors relied upon is the assignment that the court had no jurisdiction over the subject matter of the action.

With the petition or complaint, which was filed January 15, 1929, appellee filed an affidavit concerning his residence and occupation. This affidavit was in the form required by statute (§ 7, ch. 43, Acts 1873, § 1097 Burns 1926), and was sworn to before a notary public, but the date it was sworn to, December 14, 1928, was thirty-two days before the complaint was filed. The statute provides that such affidavit shall "state the length of time he has been a resident of the state, stating particularly the place, town, city or township in which he has resided for the last two years past, and stating his occupation, which shall be sworn to before the clerk of the court in which said complaint is filed.

It has been held that the execution of an affidavit before a notary public, instead of before the clerk of the court, is a substantial compliance with the statute and sufficient, Brown v. Brown (1894), 138 Ind. 257, 37 1, 2. N.E. 142, 143, but the execution of such an affidavit thirty-two days before the filing of the complaint does not state particularly the place, etc., in which he has resided for the last two years past. It fails to account for his residence for a period of more than a month, during which time he may have changed his residence.

The legislative intent of this statute was to limit its operation to bona fide residents, and to prevent non-residents from imposing upon the courts. Wills v. Wills 3, 4. (1911), 176 Ind. 631, 96 N.E. 763; Eastes v. Eastes (1881), 79 Ind. 364. Only a substantial compliance with the statute is necessary, Miller v. Miller (1914),55 Ind. App. 644, 104 N.E. 588; Stewart v. Stewart (1902),28 Ind. App. 378, 62 N.E. 1023, but "there is nothing in . . . any other case . . . that will justify a conclusion either that the courts have ever ``relaxed the requirement of the statute.'" Hoffman v.Hoffman (1918), 67 Ind. App. 230, 119 N.E. 18, 19. The affidavit here does not comply with the statute either literally or substantially.

Without the required affidavit the court acquired no jurisdiction of the case, Smith v. Smith (1916), 185 Ind. 75, 113 N.E. 296; Hetherington v. Hetherington (1928), 200 5. Ind. 56, 160 N.E. 345; Hoffman v. Hoffman, supra; Foreman v. Foreman (1921), 76 Ind. App. 83, 131 N.E. 419; Crowell v. Crowell (1924), 82 Ind. App. 281, 145 N.E. 700; Payne v. Payne (1930), 90 Ind. App. 594, 169 N.E. 475, and the judgment is therefore reversed and the cause is ordered dismissed. Wills v. Wills, supra.

Travis, J., dissents.