Opinion
No. 13,804.
Filed January 9, 1930.
1. DIVORCE — Plaintiff's Residence Affidavit — Mandatory — Jurisdictional. — Plaintiff's affidavit of his residence, as required by § 1097 Burns 1926, is mandatory, and, when not filed, the trial court is without jurisdiction. p. 595.
2. DIVORCE — Plaintiff's Residence Affidavit — Filing Cannot be Waived. — The filing of an affidavit as to plaintiff's residence, as required by § 1097 Burns 1926, cannot be waived by the parties. p. 595.
3. DIVORCE — Jurisdiction of Interlocutory Order — Plaintiff's Affidavit of Residence Necessary. — In a divorce proceeding, the court has no authority to entertain a petition for an interlocutory order unless an affidavit of plaintiff's residence, as required by § 1097 Burns 1926, or its equivalent, such as a verified petition containing the necessary allegations as to residence, is filed. p. 595.
From Clark Circuit Court; George C. Kopp, Judge.
Suit for divorce by Frances E. Payne against Claude B. Payne. From a judgment for plaintiff, the defendant appealed. Reversed. By the court in banc.
Frank A. Lorch and Stotsenburg, Weathers Minton, for appellant.
Appellee, plaintiff below, filed her petition for a divorce in the Clark Circuit Court. Her petition was not verified; neither did she file an affidavit as to her residence with her petition as provided by § 1097 Burns 1926. She filed an application for a restraining order, and, in the application, made certain allegations as to her residence, which application was sworn to.
Upon the trial of the cause, a divorce was decreed to appellee. The error assigned is that the Clark Circuit Court had no jurisdiction to try and determine the cause.
The Supreme and Appellate Courts have repeatedly held that the affidavit of residence required by the statutes in a divorce proceeding is mandatory, and, when not filed, the trial 1, 2. court is without jurisdiction; and the filing of the affidavit cannot be waived by the parties. Foreman v. Foreman (1921), 76 Ind. App. 83, 131 N.E. 419; Wills v. Wills (1911), 176 Ind. 631, 96 N.E. 763; Smith v. Smith (1916), 185 Ind. 75, 113 N.E. 296.
Before the trial court had authority to entertain a petition for an interlocutory order as provided by § 1109 Burns 1926, it was mandatory that a petition for a divorce be filed and 3. that either the petition with proper allegations as to residence be sworn to or an affidavit be filed with the petition as required by § 1097, supra, and as construed by the Supreme Court of Indiana. Smith v. Smith, supra; Brown v. Brown (1894), 138 Ind. 257, 37 N.E. 142; Eastes v. Eastes (1881), 79 Ind. 363.
Judgment reversed, with instructions to permit appellee to file affidavit as to her residence with her petition for divorce, if she so desires.