Opinion
No. 12534.
1947-08-9
CASE v. CASE.
F. Mercer Pugh, of Wauseon, for plaintiff. No appearance for defendant.
Action by Catherine L. Case against John D. Case for divorce.
Petition dismissed on ground of lack of jurisdiction.F. Mercer Pugh, of Wauseon, for plaintiff. No appearance for defendant.
HAM, Judge.
This case was heard on the plaintiff's petition for divorce. She had established ample grounds of divorce. A question of jurisdiction is present on the record, however. The petition was filed June 10, 1947. Affidavit for publication is in due form.
On June 10, 1947, a copy of petition and a summons was mailed to the defendant at his residence as given in the publication. The envelope contained a ‘return’ card and never was returned.
Publication was had for six weeks commencing June 12, 1947. The appearance docket shows that a copy of the publication was mailed to the defendant August 25, 1947, the day after answer day named in the publication, August 24, 1947. That of course is tantamount to ‘no mailing.’
The Court cannot ignore the fact that divorces are not only mounting so rapidly as to challenge the most serious consideration, but also that with that situation likewise has arisen a growing carelessness in the procedure in such cases. It seems to be taken for granted that any hasty drawn petition and shifty service will suffice.
The situation to which the court addresses itself is pregnant with serious consequences. That, in view of the fact that there is such an unanimity in the courts' repeated declarations that the statutes governing the procedure in divorce cases are no be strictly construed and that decrees ignoring the mandatory requirements are invalid. In fact, the court has often pondered if in view of these decisions many divorces granted in this court might not be declared void if attacked.
There are two instructive articles on this question in Volume 25 O.L.R., at pages 441 and 445. From the one by H. L. McCarthy at page 445, we quote:
‘In view of the provisions of general code Section 11632, it is highly important that a decree based on constructive service be as invulnerable as possible. Without service the court has no jurisdiction; without jurisdiction the judgment of the court is void. To insure SAFETY, therefore, the better practice is to follow the statute.’
This court himself in former years undoubtedly would be subject to censure for failure to follow the statute.
In two somewhat recent cases it has been held that a failure to give security for costs is fatal, in one of the cases the court held a later compliance with the statute did not confer jurisdiction. Purdy v. Purdy, 41 Ohio App. 411, 179 N.E. 698; Ewing v. Ewing, 15 Ohio N.P.,N.S., 73. Sections 11293, 11294, G.C., are made applicable; § 11984, G.C.
The statute § 11294, G.C., is mandatory; a copy of the first publication shall be immediately mailed the defendant.
In the case of Ready v. Ready, 25 Ohio App. 432, 158 N.E. 493, service was two fold, a copy of the petition and summons was served on defendant's attorneys, and a copy of the publication mailed to the defendant. If, as it would seem incontrovertible, the legislature intended that both methods of service should be had to make certain that the defendant had notice, admittedly in the above case the purpose of the statute came nearer being met than in the instant case. For there one notice was received by the defendant and another by his attorney, while here but one notice was given to the defendant. We quote the 3rd, 4th, and 5th syl.
‘Where, in divorce proceeding, only notice to nonresident defendant was by sending her the published notice of the filing of the divorce petition unaccompanied by a copy of the petition and summons, as required by Gen.Code, § 11294, court acquired no jurisdiction over defendant.
‘Under Gen.Code, § 11294, relative to service on nonresident defendants in divorce actions, leaving a copy of the summons and of the petition with defendant's counsel instead of sending them to defendant is not compliance with the statute.
‘A nonresident defendant in a divorce action is not in court unless plaintiff fully and completely conformed to the provisions of the statute as to giving notice of the action.’
Under the head, title ‘Service by Publication,’ the author of the text in 27 C.J.S., Divorce, § 95, p. 679, says:
‘Strict compliance with these statutes is necessary to give the court jurisdiction.’
The author in his annotation to the text cites (among others) Walters v. Larrick, 28 Ohio N.P.,N.S., 281, affirmed 39 Ohio App. 363, 177 N.E. 642, and Cache v. Cache, 12 Ohio App. 140.
In conclusion:
For this court to grant a divorce on this record would, in its judgment, be a positive disservice to the plaintiff, as, if granted, the plaintiff's marital status, at best, would be vague and uncertain. Not only would a could hang over any subsequent marriage, but, even more serious, would be the status of ay children born of any such marriage.
Reluctantly, yet confident of its duty, the court refuses the divorce and dismisses the petition, not on its merits-and the record may so show-but solely on the ground of lack of jurisdiction. That permits a resubmission of the case on its merits.