Emelle v. Spinner

126 P. 397, 20 Wyo. 507, 1912 Wyo. LEXIS 50

• Court: Wyoming Supreme Court
• Decided: September 10, 1912
• Docket: No. 683
• Status: Published

Opinion

Scott, Justice.

The defendant in error having administered tipon the estate of Stephen P. Emelle, deceased, filed his final account, report and petition for distribution of the estate in the District Court of Uinta county. The plaintiff in error, by her attorney, filed objections and exceptions to the report and petition alleging as grounds therefor the following reasons:

“1. Objects to the allowance of said final account and report and petition for distribution because no notice of the filing thereof has been given as provided by law.

“2. Objects to the allowance of said final account and report and petition for distribution because said report and petition are untrue in this, that no mention is made therein of said Sodonie Emelle, who at the time of the death of said Stephen P. Emelle was the lawful wife of deceased and survived said deceased and is now living and is entitled to share in the distribution of the estate of said deceased under the laws of the State of Wyoming.

“3. Objects to the allowance of said final account and report and petition- for distribution because no mention is made therein of the homestead of said deceased and of his said wife, being the east half of the northwest quarter and the west half of the northeast quarter of section eight in township twenty-five north, range one hundred eighteen west of the 6th principal meridian, in Uinta county, Wyoming, and conveyed to said deceased as his homestead by patent from the United States dated December 20, 1904.”

The parties agreed upon the facts and the case was submitted to the court'upon a statement-thereof, and the court found and gave judgment in favor of the administrator and directed payment of the balance in his hands to Margarete Emelle, daughter of deceased, and Sodonie Emelle brings error. It was agreed (1) That in the final account and petition for distribution no mention is made of Sodonie Emelle, but it is therein stated that Margarete Emelle is the daughter of said deceased and is sole heir to his estate; (2) That during and prior to 1904 deceased and said Sodo-nie Emelle were husband and wife and lived together as such; (3) That on December 21, 1904, deceased commenced suit against said Sodonie Emelle in the District Court of Uinta county for divorce; (4) That on April 8, 1905, said action for divorce came on for hearing on a special appearance and motion to quash the service of the summons which motion was'denied and the plaintiff therein was given leave to file an amended affidavit for publication of notice; (5) That no further or other appearance was made by the said Sodonie Emelle in or to said action; (6) That on April 26, 1905, an amended affidavit for publication was made and filed, but without further publication and without any notice of the filing of the amended affidavit, the default of defendant was taken and a decree of divorce was entered; (7) That at the date of the decree of divorce the deceased owned the real estate above described and claimed by Sodonie as a homestead, and that subsequent to the entry of such decree the deceased conveyed the land for a consideration by a deed in which said Sodonie did not join, nor has she ever joined in or executed any deed or transfer o.f the same to any one. The value of the estate as shown by the appraisers’ report was $375.50. The amount on hand for distribution as shown by the final report was $51.20. The debts had all been paid.

The failure if true in the exceptions to publish the notice of final settlement did not affect plaintiff’s right, as she appeared without such notice.

It will be observed that by the exceptions to the report and petition for final distribution that the plaintiff in error, under the claim of being the surviving widow of deceased, sought to share in the distribution of the assets of the estate, and to include in such assets the alleged homestead. It was necessary for her to establish the fact that she was the surviving widow, in order to obtain the relief sought. Her contention brings up the question as to whether she was the surviving widow of deceased, and it is here argued that the decree of divorce was not voidable, but void for want of personal jurisdiction of the defendant in that case.

It is provided by paragraph 6 of Sec. 4366, Comp. Stat. 1910, that service by publication may be had in suits for divorce. By Sec. 4367 id. it is provided that “In any case in which service by publication is made under the provisions of the preceding section, when the residence of a defendant is known, it must be stated in the publication; immediately after the, first publication the party making the service shall deliver to the clerk copies of the publication, with the proper postage, and the clerk shall mail a copy to each defendant, directed to his residence named therein, and make an entry thereof, on the appearance docket; and in all other cases the party who makes the service, his agent or attorney, shall, before the hearing, make and file an affidavit that the residence of the defendant -is unknown, and cannot with reasonable diligence be ascertained.” Sec. 4368 is as follows:

“Sec. 4368. Before service by publication can be made, an affidavit of the party, his agent or attorney, must be filed showing that service of a summons cannot be made within this state, on the defendant, to be served by publication, and that the case is one of those mentioned in Sec. 4366; and when such affidavit is filed, the party may proceed to make service by publication.” The affidavit filed in the divorce case as the basis for publication of the notice as shown by the bill of exceptions is as follows:

>ss. In the District Court'of said county /■Affidavit for publication of summons. “State of Wyoming, 1 County of Uinta. ) S Stephen P. Emelle, Plaintiff, | vs. Sodonie Emelle, Defendant.

“R. S. Spence, being first duly sworn, deposes and says that he is the attorney for the plaintiff herein, Stephen P. Emelle, that service of summons in the above entitled cause cannot be upon the said defendant, Sodonie Emelle, within this state, the State of Wyoming; that her place of residence cannot by reasonable diligence be ascertained and is unknown. R. S. Spence.

“Subscribed and sworn to before me this 3rd day of January, 1905. Robert Miller,

“(Seal.) Clerk of Court.”

The order made upon the hearing of the motion to set aside the service is as follows:

“The motion to set aside the service of summons in this action coming on for hearing this day, and the court being fully advised in the premises;

“It is hereby ordered, adjudged and decreed that said, motion be denied, that the plaintiff be allowed, to file an amended affidavit for publication, and that the defendant be allowed thirty days to answer or otherwise plead in this action, to all of which the defendant excepts. Dated April 6, 1905.”

The default of the defendant was taken June- 12, 1905, as shown by the following journal entry: .

>In the District Court. “The State of Wyoming, County of Uinta. Stephen P. Emelle, Plaintiff, j vs. ^Default. Sodonie Emelle,' Defendant.

“Comes now the plaintiff herein by R. S. Spence, attorney, and shows to the court that, due service of summons by publication of the pendency of this action, was had upon the above named defendant, and that said defendant has failed and neglected to answer or otherwise plead to plaintiff’s petition herein; Whereupon, on motion of plaintiff’s attorney and by order of court, the defendant is three times called and answered not herein makes default.”

The decree of divorce with the exception of the title is as follows:

“This cause coming on to be heard this 12th day of June, A. D. 1905, upon the petition herein taken as confessed by the defendant whose default for not answering had been duly entered upon the proofs taken herein, from which it appears that all the material allegations of the petition are sustained, and it also appearing to said court that the defendant was duly served with the summons and all and singular the law and the premises being by the court here understood and fully considered;

“Wherefore, it is here ordered,-adjudged and decreed, and this does order, adjudge and decree that the marriage between the said plaintiff, Stephen P. Emelle, and the said defendant, Sodonie Emelle, be dissolved, and the same is hereby dissolved, and the said parties are and each of them is freed and absolutely released from the bonds of matrimony, and all the obligations thereof.”

The affidavit for publication was before the court and by a special appearance a ruling upon its sufficiency was invoked by the defendant in that case. It is not a case where there is an entire absence of an affidavit. The court denied her motion and thereby held the affidavit sufficient to authorize the service by publication. Her special appearance was for the purpose of questioning the jurisdiction of. the court by reason of the alleged insufficiency of the affidavit. This was in the nature of a direct attack and raised the same question which she sought to raise collaterally and have re-tried in this case. The court had jurisdiction to pass upon the question of the sufficiency of the affidavit as affecting its jurisdiction and having done so the question in the absence of any appeal therefrom or vacation of the order in so far as it affects this case must be held to be res ad judicata. (12 Ency. PI. & Pr. 211; Collins et al. v. Ryan et al., 32 Barb. (N. Y.) 647.) The sufficiency of the affidavit for service by publication was for the court in that case and that court having passed upon that question the same is good as against collateral attack. (Belmont v. Cornen et al., 82 N. Y. 256; Fowler v. Whiteman, 2 O. St. 271, 286; Callen v. Ellison et al., 13 O. St. 446, 455, 82 Am. Dec. 448; Rhodes v. Green, 35 O. St. 387, 354; Richards v. Skiff et al., 8 O. St. 586; Hammond v. Davenport, 16 O. St. 178; Lessee of Boswell et al. v. Sharp et al., 15 O. St. 447; Lessee of Irvin v. Smith, 17 Ohio, 226, 243; Lessee of Morgan et al. v. Burnett, 18 Ohio, 535.) The Ohio cases above cited are under the chancery practice, where service by publication was upon order of the court, and the affidavit as required by the statute was not involved. They are, however, considered as applicable to the question of collateral attack as here presented, for in each the court passed upon the proof of service in pursuance of the order, and when the court found from the proofs that the service had been duly made, or that tlie proofs were sufficient, or that service was shown to have been in conformity to the order, then such finding when carried into the judgment- rendered the service good as against a collateral attack. The court in the case here passed upon the sufficiency of the affidavit when attacked directly, and ruled adversely to the contention of the defendant. That was a judicial determination of the question by the trial court invoked by the defendant in that case, and such ruling being within the jurisdiction.of that court (Essig v. Eower et al., 120 Ind. 239, 244, 21 N. E. 1090) binds the defendant in that case, plaintiff in error here, as against a collateral attack. (Stevens et al. v. Reynolds, 143 Ind. 467, 484, 41 N. E. 93x, 52 Am. St. Rep. 422; Dowell v. Lahr et al., 97 Ind. 146, 153; Goodell v. Starr, 127 Ind. 198, 26 N. E. 793; Bennett v. Wilson, 85 Am. St. Rep. 207, 212, 133 Cal. 379, 65 Pac. 880; Rogers.v. Miller, 13 Wash. 82, 42 Pac. 525, 52 Am. St. Rep. 20; Bradley v. Doone, 187 Ill. 175, 58 N. E. 304, 79 Am. St. Rep. 214; Bank of Colfax v. Richardson, 34 Or. 518, 54 Pac. 359, 75 Am. St. Rep. 664; Repine v. McPherson, 2 Kan. 340; Dietrich v. Dang, 11 Kan. 636; Claypoole v. Houston, 12 Kan. 324; Harrison v. Beard, 30 Kan. 532, 2 Pac. 632; Williams v. Moorehead et al., 33 Kan. 609, 7 Pac. 226.)

We need not here discuss the question as to whether an amended affidavit could be properly filed. No such affidavit is in the record. We place our decision solely upon the proposition that the court having jurisdiction to pass on the sufficiency of the affidavit for service by publication in the divorce proceeding, and having done so upon a direct attack that question became and was, in'the absence of an appeal, res adjudicata as between the parties to that proceeding, and that being so, for the purposes of this case, the plaintiff in error failed to show that she was the surviving widow of the deceased, and for that reason under our statute she was neither entitled to a homestead, nor to exempt personal property nor as a distributee in the estate o’f the deceased. It follows that the judgment must be affirmed. Affirmed.

Beard, C. J., and Potter, J., concur.