Hooper v. Hooper

135 P. 525, 67 Or. 187, 1913 Ore. LEXIS 170

• Court: Oregon Supreme Court
• Decided: September 23, 1913
• Status: Published

Opinions

Mr. Justice McNary

delivered the opinion of the court.

This is a suit to declare a marriage contract void agreeably to the provision of Section 502, L. O. L.: “All marriages which are prohibited by law, on account of consanguinity between the parties, or on account of either of them having a former husband or wife then living, or on account of either of them being one fourth or more of negro blood, shall, if solemnized within this state, be absolutely void.”

On the 2d day of October, 1911, at the city of Vancouver, Washington, the parties litigant weré married. Six days later plaintiff brought this suit to annul the marriage, complaining that a period of six months had not intervened between the nuptials and a prior divorce had by defendant.

1. Due service was made upon defendant, though a copy of the complaint alone was served upon the district attorney. Default for want of an answer was made by defendant and the representative of the state. The trial court decided adversely to the petition of plaintiff.

Section 1020, L. O. L., prescribes the duty of a district attorney in matters of divorce: “In any suit for the dissolution of the marriage contract, or to have the same declared void, the state is to be deemed a party defendant, and the party plaintiff in such suit shall cause the summons to be served upon the district attorney of the district within which the suit is commenced at least ten days before the term at which the defendant is required to appear and answer. It shall be the duty of such district attorney, so far as may be necessary to prevent fraud or collusion in such suit, to control the proceedings on the part of the defense, and in case the defendant does not appear therein, or defend the same in good faith, to make a defense therein on behalf of the state. ’ ’

It will be observed the statute expressly declares that the plaintiff shall cause a ‘ ‘ summons ” to be served upon the district attorney, whereas, the record reveals the complaint only was served upon that official. This omission of a plain statutory requirement is fatal. The office of a summons and a complaint are too variant to admit of the one doing the service of the other. The complaint is but a vehicle, construed by law to convey to the defendant, in extenso, the nature of the grievance laid against him, while the summons performs the function of imparting notice of the limitation of the time in which the charge is to be met by appropriate legal action.

2. Obviously, by force of Section 1020, L. O. L., the state is made a úeeessary party defendant, in suits for the dissolution of the marriage contract, or to have the same declared void. Not, however, in the sense the state must be named a party litigant, but in the larger sense that the state must be notified by service of summons upon the state’s representative of the commencement of the litigation, for the statute says: “It shall be the duty of the district attorney, so far as may be necessary, to prevent fraud or collusion in such suit, to control the proceedings on the part of the defense, and in case the defendant does not appear therein, or defend against the same in good faith, to make a defense therein on behalf of the state. ’ ’

On account of the importance of litigation involving the marital contract, and the evils that would issue from a loose observance of the law, statutes regulating service of process should be strictly construed, and a failure to comply therewith must necessarily defeat the jurisdiction of the court.

For the reasons herein assigned, the decree of the lower court is affirmed. Affirmed.

Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice Eakin concur.