Citation Numbers: 57 Misc. 400, 109 N.Y.S. 705
Judges: Spencer
Filed Date: 1/15/1908
Status: Precedential
Modified Date: 1/13/2023
This is an action for absolute divorce. The parties at one time were residents of Saratoga in this State; but, when the action-was brought, the defendant was either residing or sojourning in the city of Portland, Oregon. As proof of personal service of the summons and complaint, the attorney has filed an affidavit by one George J. Perkins of the State,of Oregon. The affidavit is imperfect (the affiant miscalling the plaintiff for the defendant), and is further insufficient in that the affiant makes no claim to have any knowledge that the person served was the husband of the plaintiff, except information derived from the person so served. It is further deficient in not being duly authenti
The case was placed upon the Trial Term calendar as a contested action, beginning February 11, 1907; and an order was entered referring the action to a referee to hear and determine. The action was brought to hearing on the 2Gth day of July, 1907, the plaintiff appearing in person and by her attorney and counsel, the defendant appearing also by his attorney; and the evidence in support of plaintiff’s allegations was taken. On the 8th day of August, 1907, the referee made his report, finding the material allegations of the complaint. The present motion is for judgment accordingly.
The plaintiff’s contention is that, although service of the summons upon the defendant was in a foreign State without any order of the court, the subsequent appearance of defendant by attorney confers jurisdiction on the court to award judgment. I do not see my way clear to such a result. There is no authority, as far as I can find, for service of summons upon a defendant outside the State except in the manner prescribed by the Code of Civil Procedure, and generally known as service by publication. In such cases, where service by publication is ordered, the publication may be omitted and personal service beyond the State substituted, if the orders so provide. But personal service under an order of publication in an action for divorce is always a doubtful and uncertain method, for the reason that, in such actions, the affidavit of service must Conform to the requirements of
But, it is urged, that, although service in this case does not comply with the statute, there can be no doubt that service was in fact made; and, as plaintiff has been put to expense, the court should regard the service sufficient and order judgment against the defendant. I am not aware that the court has any such power. To obtain an order permitting service outside the State is a statutory requirement and, upon its observation, the jurisdiction of the court depends. The rule that an appearance by attorney in these actions shall not be taken in lieu of- proof of service was established to abolish a deplorable condition which formerly existed; and I am not inclined to interfere with its operation, even if I were at liberty to do so.
The motion for judgment must, therefore, be denied, and all the proceedings since the issuance of the summons set aside and plaintiff required to obtain due service thereof, the service outside the State, without an order, being a nullity.
Ordered accordingly.