Opinion
No. 30252
Decided April 4, 1945.
Procedendo — Writ not issued requiring judge to hear and determine divorce action — Defendant nonresident and no service by publication or service of summons.
A plaintiff who has filed a petition for divorce in a Court of Common Pleas will not be awarded a writ of procedendo requiring a judge of such court to hear and determine the action, where it appears that the defendant is not a resident of Ohio and that there has been no publication of the pendency of the action for the prescribed length of time and no service of summons of any kind.
IN PROCEDENDO.
The relator in his petition alleges that he filed his petition for divorce in the Court of Common Pleas of Hamilton county on November 22, 1944; that eight days later the defendant, a nonresident of Ohio, filed a written waiver of the issuing and service of summons including an entry of appearance in the action; that more than six weeks thereafter relator and his witnesses appeared in court and requested a hearing and determination of the case, which was refused. Wherefore; it is prayed that a writ of procedendo be issued by this court ordering the respondent, as judge of the Court of Common Pleas, to proceed with the hearing and determination of the divorce action.
The matter is submitted upon the petition and a demurrer thereto.
Mr. John W. Cowell, for relator.
Mr. Oliver G. Bailey, Mr. Bert H. Long, Mr. Grauman Marks and Mr. Paul W. Steer, for respondent.
Because of the interest of the public in the preservation of the marital status, divorce suits are accorded different treatment from ordinary civil actions, and it becomes the duty of a court in such cases to be vigilant against collusion and to see that there is compliance with the applicable statutes. 14 Ohio Jurisprudence, 377, Section 3; 20 Ann. Cas., 341. Divorce, of course, is entirely a statutory matter.
Since the early case of Harter v. Harter, 5 Ohio, 318, the courts of Ohio have been prone to give a strict construction to the divorce laws and have held that the statutes relating to service or notice should be observed. 14 Ohio Jurisprudence, 416, Section 35; Calvert v Calvert, 130 Ohio St. 369, 199 N.E. 473.
Thus, this court, in Ferrel v. Ferrel, rendered a decision found in 2 W. L. J., 427, 1 Dec. Rep., 135, and reported as follows:
"Defendant lives in Clark county, Ohio. His counsel acknowledged service more than six weeks before the term, and filed his answer. Held, that the statute requiring either personal service or advertisement, is peremptory, and cannot be dispensed with."
Generally, under statutes pertaining to divorce which demand personal service or notice by publication, waiver of service or acknowledgment of service is not sufficient or effective. 17 American Jurisprudence, 301, Section 294.
Relator cites and relies on Black v. Black, 110 Ohio St. 392, 144 N.E. 268. There, however, the defendant pleaded, was personally present to defend the action and, as pointed out by Judge Williams, in his opinion in Tucker v. Tucker, 143 Ohio St. 658, 56 N.E.2d 202, there had been attempted service on him. Besides, the language of the court in the per curiam opinion in the Black case, that, by his actions, the defendant Black had waived any question of "jurisdiction over his person," seems to have been directed primarily to that phase of the suit having to do with the custody of the child. See 14 Ohio Jurisprudence, 417, note 16.
In the Tucker case, supra, recently decided, there was personal service on the defendant outside Ohio, which, though irregular, was not quashed or sought to be quashed. Later, the defendant filed an answer containing an entry of appearance, a waiver of summons and a denial of some of the principal allegations of the petition. Upon that combination of facts this court took the view that the Court of Common Pleas acquired jurisdiction and possessed the authority to enter a decree of divorce in favor of the plaintiff. In the present case there was no service of any kind and no answer. We are of opinion that the Tucker case should not be extended beyond the particular facts there involved.
As it affects the instant controversy, Section 11984, General Code, recites that where the defendant in a divorce action is not a resident of Ohio, notice of the pendency of the action must be given by publication and a summons and copy of the petition mailed forthwith to the defendant where he (or she) resides.
By the terms of Section 11985, General Code, the cause may be heard and decided after the expiration of six weeks from the service of summons or the first publication of notice. If courts should brush aside in essential respects these statutory provisions expressly governing divorce actions, the result would be judicial legislation.
A writ of procedendo is in substance a writ of mandamus. State, ex rel. Smith, v. Smith, 69 Ohio St. 196, 201, 68 N.E. 1044, 1046. This being so, it would seem logically to follow that the one asking its issuance should show a clear right thereto. 25 Ohio Jurisprudence, 997, Section 23.
We conclude that the petition does not contain allegations entitling relator to the requested writ. The demurrer to the petition is therefore sustained, and, relator not wishing to plead further, the writ is denied.
Writ denied.
WEYGANDT, C.J., BELL, WILLIAMS, TURNER, MATTHIAS and HART, JJ., concur.