Summary
remanding a divorce case in order for the party to personally sign the complaint for divorce, which had previously been signed by his attorney
Summary of this case from Beech v. Leaf River Forest Products, Inc.Opinion
No. 35772.
February 12, 1945.
1. AFFIDAVITS.
Where a statute prescribes who shall make a certain affidavit, it can be made only by person specified, although there is nothing in language of statute to show that its designation was intended to be exclusive.
2. DIVORCE.
The statute requiring that bill for divorce be accompanied by complainant's affidavit that bill is not filed by collusion with defendant, but that cause or causes for divorce stated in bill as true, excludes operation of the statute which generally permits an oath or affirmation to be made by agent or attorney (Code 1942, secs. 1661, 2737(6)).
3. DIVORCE.
The affidavit of complainant, which must accompany bill for divorce, can only be made by complainant (Code 1942, sec. 2737(6)).
4. DIVORCE.
The purpose of the statute requiring complainant in divorce suit to file an affidavit with bill of complaint negativing collusion is to purge conscience of complainant touching question of collusion (Code 1942, sec. 2737(6)).
5. DIVORCE.
Where bill for divorce was filed at procurement of mother of soldier-husband, who was overseas, and bill was sworn to by mother and by attorney of record and wife made timely objection to any hearing for want of statutory affidavit by complainant negativing collusion, decree for husband was vacated and cause remanded with directions that it might not be proceeded with further until required affidavit was made by husband personally (Code 1942, secs. 1661, 2737(6)).
APPEAL from the chancery court of Sunflower county, HON. J.L. WILLIAMS, Chancellor.
F.M. Featherston, of Indianola, for appellant.
The bill of complaint herein was sworn to, not by complainant, but by the mother of complainant, Corean Vance, and Hon. Arthur B. Clark, attorney for complainant, and the latters oath, as shown, is only on information and belief. Timely motion to dismiss for said jurisdictional fault was made by appellant, defendant, in advance of the trial and at end of complainant's proof, but overruled by the court. Complainant is nowhere shown to be a minor or person non compos mentis, or under guardianship. The uncontradicted proof in the form of letters from complainant and the latest proof (March 5 and 13, 1944) shows no desertion and that complainant still loved defendant and contemplated no divorce, and, therefore, no oath of the mother of complainant — not shown to be an agent — could validly sustain allegations of bill, and, as stated, the oath of Hon. Arthur B. Clark to said bill was only on information and belief, not specifying from whom such information was obtained. Therefore, I state that the bill should not have been entertained by the lower court.
Code of 1942, Sec. 2737.
Complainant did not testify in the trial, nor was his deposition ever taken. In my humble opinion, if a bill for divorce can be brought and divorce awarded under a situation similar to the present case, then, jokingly stated,
"It is dangerous for a person to leave home."
I respectfully state that the requirements set forth in Section 2737, Code of 1942, must strictly be followed, including oath to bill by complainant, and that, in such cases, Section 1661, Code of 1942, does not apply. Neill, Clark Townsend, of Indianola, for appellee.
The only question presented here for consideration, as we see this record, is as to whether or not the bill of complaint should have been dismissed on motion of appellant alleging that the bill of complaint filed herein was not signed and acknowledged under oath, as required by Section 1416, Code of 1930, Section 2737, Code of 1942.
Appellant first filed and disposed of her motion for attorney's fee and temporary alimony, thus waiving her right to test the imperfections of the bill, if any.
In all cases where the oath or affirmation of the party is required, such oath or affirmation may be made by his agent or attorney, and shall be effectual for all purposes as if made by the party.
Code of 1942, Sec. 1661.
The bill is sworn to first by the mother of appellee, his agent, the affidavit is regular in form, does not recite that the same is made on information, and such an affidavit is construed to be on knowledge.
Huff v. Murray, 171 Miss. 656, 158 So. 475.
The bill is then sworn to by one of the attorneys of record for appellee, and while this affidavit recites that the details of the allegations of the bill are sworn to on information, yet this affidavit concludes on knowledge that said bill of complaint is not filed by collusion with the defendant, Louise Vance, for the purpose of obtaining a divorce, but that the cause for divorce, stated in said bill, are true as therein stated.
The bill of complaint was held by the court below to be sufficient, and, we submit, correctly so.
On December 11, 1943, there was filed in the Chancery Court of Sunflower County a bill for divorce in the name of V.L. Vance as complainant, and against his wife Louise Vance. The bill was not sworn to by the ostensible complainant, but by his mother and also by the attorney of record. The evidence shows that V.L. Vance was at that time a soldier in North Africa, and that he had been in the Army since December 6, 1942. On the hearing, which was at the May 1944 Term of the court, the defendant wife appeared and defended, and in the course thereof it was developed that the bill had been filed at the procurement of Vance's mother who claimed that she had been authorized by her son by letter but she was unable to produce any such letter. The wife introduced two letters from her soldier husband written to her from North Africa, one dated March 5, 1944, and one March 13, 1944, within less than two months before the so-called hearing, in each of which he addressed her as his dear wife, signing himself as her husband, couched in affectionate terms, speaking of the exchange of their photographs, and in one he sent her some North African currency and asked her to keep it until he came home. Looking closely to these two letters, the inference can hardly be escaped that he knew nothing of any divorce proceedings, and that if there had been any marital breaches on the part of the wife, they had been condoned and forgiven.
The above is stated in order to point up the pertinency of what we are deciding herein. Timely objection was made in the trial court to any hearing on the bill because of the want of the statutory affidavit by the complainant, to which reply was made, as is made here, that the affidavit was sufficient under Sec. 1661, Code 1942, which provides that "in all cases where the oath or affirmation of the party is required, such oath or affirmation may be made by his agent or attorney, and shall be as effectual for all purposes as if made by the party."
The rule is that if a statute specifically prescribes who shall make a certain affidavit, it can be made by none other than the person specified, although there is nothing in the language of the statute to show that its designation was intended to be exclusive. 1 Am. Jur., p. 935. It was by the application of this rule that this Court has held that the affidavit to a probated claim can be made only by the creditor himself. Persons v. Griffin, 112 Miss. 643, 73 So. 624, and cases therein cited.
But the language of the statute as to a divorce bill shows by its terms that the designation of the complainant as the person to make the affidavit to the bill was intended to be exclusive. See 2737, Code 1942, says that "The proceedings to obtain a divorce shall be by bill in chancery, and shall be conducted as other suits in chancery except that . . . (6) in all cases the bill must be accompanied with an affidavit of complainant that it is not filed by collusion with the defendant, for the purpose of obtaining a divorce, but that the cause or causes for divorce stated in the bill are true as stated." (Italics ours.) This excludes the operation of the general statute, Sec. 1661, Code 1942, above quoted, as respects the stated exception under numeral (6) also above quoted.
We turn to Amis on Divorce and Separation in Mississippi, a volume which we regularly consult next after the statutes, and there the learned author states, on p. 349, that "the affidavit must be positive and unequivocal. It may not be made by an attorney, next friend or guardian. The purpose of the statute is to purge the conscience of the complainant touching the question of collusion."
The case Hinkle v. Lovelace, 204 Mo. 208, 102 S.W. 1015, 11 L.R.A. (N.S.) 730, 120 Am. St. Rep. 698, 11 Ann. Cas. 794, is in point and is perhaps the one case most nearly so. After adverting to the strictly personal nature of a divorce petition and that whether a marital offense shall be overlooked, or condoned, or forgiven is a matter in which no other person has any controlling concern and is to be determined solely by the injured spouse, and that in such matters no other person than the husband and the wife can have that inner knowledge and feeling which, in the nature of things, they alone can possess, the court concluded that only the petitioning party can make the affidavit to the bill, and we concur in that conclusion as a matter of legal principle, even if our statute were less persuasive towards the same result.
But we are not holding that the failure to make the statutory affidavit by the complainant himself or herself will render the subsequent proceedings void, including the decree. We are not saying that the bill should be dismissed for want of jurisdiction, but that the decree will be vacated and the cause remanded, and that it may not be proceeded with further until the required affidavit is made by the complainant personally.
Reversed and remanded.