McCune v. McCune

Opinion by

Oblady, J.,

In divorce cases the law contemplates that the proceeding shall be continuously adverse, and to secure jurisdiction of the respondent, there must be either the actual personal service of a subpoena, or its statutory equivalent. The alleged irregularity, of which the respondent in this case complains, is not sufficent to warrant a reversal of the decree, for the reason that after the return non est inventus of the second subpoena, her counsel entered an appearance of record, which of itself would not be sufficient to bring her properly before the court, but following this, there was a regular order made for service by publication, and upon the return of this order, a formal personal notice was given to the respondent of the appointment of the master, and the date and place named when he would receive testimony. In answer thereto the respondent appeared before the master with her counsel; submitted herself to examination, in her own behalf; cross-examined the libelant’s witnesses and called a number of witnesses in support of her defense. No exception was taken to want of jurisdiction, either before the master or in the court below, and the question is raised on this appeal for the first time. Under the facts, she delayed too long in questioning the jurisdiction of the court, while she was seeking its decree in her favor. The first assignment of error is not sustained.

The other assignments are to the sufficiency of the evidence to warrant the making of the decree of divorce. We have read with care all the testimony, and agree fully with the conclusion reached by the master and the court. It is not necessary to analyze the evidence in this case. The respondent’s testimony and her letters written to her husband can have but one interpretation, and that is conclusively against her contention.

The decree is affirmed.