Krumenacker v. Andis

Grace, J. This appeal involves the interpretation of § 8725 of the Compiled Laws of 1913, and the sufficiency of an affidavit necessary for service by publication in the divorce proceedings referred to in this action. A complete statement of facts is necessary for a full understanding of the issues involved. For the salce of clearness it may be well to note at the inception that there are two Magdalena Krumen — 506 — ackers wbo are interested in this action; — tbe plaintiff, wbo was tbe wife during his lifetime of Ludvig Krumenacker and who is the plaintiff in this case; the other Magdalena Krumenacker is the surviving widow of Ludvig Krumenaeker’s brother. The respondent, Magdalena Krumenacker, and Ludvig Krumenacker, were intermarried in Austria-Hungary in the year 1887. They lived in said country for some years as husband and wife, and to that union one child was born, which died in infancy. The deceased while living in said country abused the respondent and beat her, and for such was sentenced to and did serve seven months in prison in Austria-Hungary. After being released from such prison he never returned to live with the respondent, and in the year 1900 came to the United States of America, established his residence in Stark county, North Dakota, about the year 1900, and continued to reside there until April 5, 1914, at which time his death occurred in Stark county, and while a resident thereof. The respondent has always resided in Austria-Hungary, and has never been a resident of Stark county, North Dakota, nor of the state of North Dakota. The deceased left no property except that which was in Stark county, North Dakota, the amount of which is disclosed by the inventory. After the payment of all funeral expenses and the expenses of the last illness, there remained in the hands of the executor unexpended property of the value of $2,000. In 1910 Ludvig Krumenacker brought an action in the district court of Stark county for a divorce from bis wife, Magdalena Krumenacker, on tbe ground of desertion, and tbe decree of divorce was granted. In 1911, at Dickinson, North Dakota, he married bis then housekeeper, Margaret Schummer, and they lived together as husband and wife until she died in 1913. To the marriage of Ludvig Krumenacker and Magdalena Krumenacker there was never any other issue except the child to which we have before referred, which died in infancy. Ludvig Krumenacker died testate, and by the terms of his will all of his property is given to other persons than tbe respondent. The beneficiaries under tbe will are bis brother’s widow, whose name is also Magdalena Krumenacker, and her grand-children, wbo are residuary legatees, the Stecher children, all of whom are minors and orphans and residents of Stark county, North Dakota. — 507 — While the will was in process of being probated and the estate was in the course of administration, the respondent, by attorney, filed a petition in the county court of Stark county, claiming that she was the widow of the decedent, and setting forth that no provision had been made for her by the will, demanding a certain house and lot for a homestead, and $1,500 in personal property exemptions under § 8725 of the Compiled Laws of 1913, and a family allowance. The executor •and two of the defendants answered, denying her right to the homestead and other exemptions, and set up a certain decree of divorce, and the further fact that the plaintiff was a nonresident, who had not maintained any family relation with the decedent for twenty years or more. The matter came on for hearing in the county court of Stark county, the county court denying the plaintiff and respondent any right to ex•emptions. Plaintiff appealed to the district court of Stark county, and trial was had therein December 30, 1915. The district court found the decree of divorce to be null and void and open to collateral attack, denied the plaintiff and respondent’s right to the homestead, but held that she was entitled to the exemption of $1,500 in personal property. A motion was made by the-defendants for a new trial, which was denied. The first legal question presented to us is, Was there a valid decree of divorce granted Ludvig Krumenacker from Magdalena Krumenacker? The divorce action was commenced in the year 1910. The only service of the summons in the divorce proceedings was by publication. No claim is made of any personal service, and the validity of the divorce decree depends upon the validity of the constructive service of the summons. Section 7128 of the Compiled Laws of 1913 and its subdivisions provides the things necessary to be done to procure the service of a summons by publication. It reads as follows: “Service of the summons in ■an action may be made on any defendant by publication thereof upon filing a verified complaint therein with the clerk of the district court of the county in which the action is commenced, setting forth a cause of action in favor of the plaintiff and against the defendant, and also filing an affidavit stating the place of defendant’s residence, if known to the affiant, and if not known, stating that fact, and further stating: “That the defendant is not a resident of this state; or . . . that personal service cannot be made on such defendant within this state to — 508 — the best knowledge, information and belief of the person making such affidavit, and in cases arising under this subdivision the affidavit shall be accompanied by the return of the sheriff of the county in which the-action is brought, stating that after diligent inquiry for the purpose of serving such summons he is unable to make personal service thereof upon such defendant. The affidavit shall also state . . . that the action is for divorce or for a decree annulling a marriage.” The following is the affidavit made as a basis for the publication of such summons: “Ludvig Krumenacker, Sr., on being first duly sworn, deposes and: says that he is the plaintiff in the above-entitled action; that the defendant, Magdalena Krumenacker, is not a resident of the state of North Dakota, and for that reason it will be impossible to get personal service on the defendant in the above-entitled action; that the present whereabouts of this defendant are unknown to your afficmt. Affiant further states that this action is one for divorce.” The main question presented concerning this affidavit is whether or not it is sufficient compliance with § 7428 of the Compiled Laws of 1918, which provides that the affidavit for publication shall state the place of defendant’s residence, if known to the affiant, and, if not known, stating that fact. We are quite clear that the term “whereabouts” is in no manner synonymous with the place of defendant’s residence.- These expressions have not the same meaning. The term “whereabouts” as defined by Webster means the place where a person or thing is. It is clear that a person might be in a place or in many different places at different times without that place being his residence. Residence means the placo where a person resides or stays with some degree of permanency. As-defined by Webster, “the act or fact of residing, abiding, or dwelling-in a place for some continuance of time;” “the place where one resides;” “an abode;” “a dwelling or habitation, especially a settled or permanent home or domicil;” “the place where anything rests permanently.” It is clear from these definitions that there is really nothing synonymous between the terms “resident” and “whereabouts.” A person may be in a place or different places, any or all of which may be referred to as his “whereabouts,” but none of which is his “residence.” His509 residence may be a great distance from tbe places we have referred to. It might be in a different city or a different state, and a long distance removed from the places which may be referred to as his “whereabouts.” The term “whereabouts” implies a kind of nomadic quality. It to some extent implies a wanderer from place to place, while, on the other hand, residence implies permanency, and brings to our mind the abiding place for a continuance of time. The word “whereabouts” having a clearly different significance to the word “residence,” it is not synonymous with it, and is not interchangeable therewith in use or meaning. As used in the affidavit under consideration in this case in place of the word “residence” it is wholly inadequate. This is especially true in view of the provisions of law which require the residence to be stated, if known, and, if not known, that fact also to be stated. The word “whereabouts” in no manner complies with the requirements of such law, and the affidavit is for that reason fatally defective. The law also requires the affidavit to be filed before the first publication of the summons. The affidavit in question was not filed until some time after the first publication of the summons. This omission is also fatally defective. These two matters are the basis of the jurisdiction to be required. Where the affidavit and the filing thereof are not in accordance with the law, and are fatally defective, the court acquires no jurisdiction, and for these reasons the court acquired no jurisdiction, and therefore the decree of the court is invalid, void, and of no force and effect. The following cases are largely in point: Jablonski v. Piesik, 30 N. D. 543, 153 N. W. 274; Roberts v. Enderlin Invest. Co. 21 N. D. 594, 132 N. W. 145; Black, Judgm. 2d ed. § 232; Boswell v. Otis, 9 How. 336, 350, 13 L. ed. 164, 170; Braley v. Seaman, 30 Cal. 611; Barber v. Morris, 37 Minn. 194, 5 Am. St. Rep. 836, 33 N. W. 559. The affidavit for publication and the proof of service and filing thereof are part of the judgment roll under § 7688, Compiled Laws of 1913. It is a rule well settled that, where the judgment roll discloses that no service was had, the judgment is void, and may be impeached directly or collaterally. Black, Judgm. 2d ed. §§ 246, 263, pp. 366, 396; O’Malley v. Fricke, 104 Wis. 280, 80 N. W. 436; Carter v. Frahm, 31 S. D. 379, 141 N. W. 370; Boyle v. Ora Plata Min. & Mill. Co. 14 Ariz. 484, 131 Pac. 155; Empire Ranch & Cattle Co. v. Coleman, 23 Colo. App. 351, 129 Pac. 522; Empire Ranch & Cattle Co. v. Gibson, — 510 — 23 Colo. App. 344, 129 Pac. 520; Empire Ranch & Cattle Co. v, Coldren, 51 Colo. 115, 117 Pac. 1005; Aldrich v. Steen, 71 Neb. 33, 98 N. W. 445, 100 N. W. 311; Chicago, B. & Q. R. Co. v. Hitchcock County, 60 Neb. 722, 84 N. W. 97; Kahn v. Matthai, 115 Cal. 689, 47 Pac. 698; Parsons v. Weis, 144 Cal. 410, 77 Pac. 1007; Galpin v. Page, 18 Wall. 360, 21 L. ed. 959; Vandervort v. Finnell, 96 Neb. 515, 148 N. W. 332; Lougee v. Beeney, 22 Colo. App. 603, 126 Pac. 1102; Munson v. Pawnee Cattle Co. 53 Colo. 337, 126 Pac. 275; Empire Ranch & Cattle Co. v. Irwin, 23 Colo. App. 206, 128 Pac. 867; Hembree v. McFarland, 55 Wash. 605, 104 Pac. 837; Fogg v. Ellis, 61 Neb. 829, 86 N. W. 494; Hanover v. Turner, 14 Mass. 227, 7 Am. Dec. 203; Brown v. St. Paul & N. P. R. Co. 38 Minn. 506, 38 N. W. 698; Grover & B. Sewing Mach. Co. v. Radcliffe, 137 U. S. 287, 34 L. ed. 670, 11 Sup. Ct. Rep. 92. The next question to be considered in this case is the construction to be accorded to § 8725, Compiled Laws of 1913. § 8725 is as follows: “Exempt Personal Property, disposition of. There shall also be set. apart absolutely to the surviving wife or husband, or minor children-all the personal property of the testator or intestate which would be-exempt from execution, if he were living, including all property absolutely exempt, and other property selected by the person or persons, entitled thereto to the amount in value of $1,500 according to the appraisement, and such property shall not be liable for any prior debt of the decedent except the necessary charges of his last sickness and funeral — and expenses of the administration, when there are no other assets available for the payment of such charges.” Section 8727 is as follows: “Allowance for the family. If the amount so set apart is insufficient for the support of the widow and children or either — and there is other estate of the decedent, the court may in its discretion order such reasonable allowance out of the estate as shall be necessary for the maintenance of the family according to their circumstances during the progress of the settlement of the estate, which, in case of an insolvent estate must not be longer than one year after granting letters testamentary or of administration.” We have no hesitancy in interpreting the sections just referred to as part of the exemption law. The exemption laws are of local application and apply to the residents of this state. — 511 — They are primarily intended for the protection of the home, as well as for the protection of the state itself. The state is interested in protecting the home, and in throwing safeguards about it. In setting aside part of the property of which the decedent died possessed, for the use and benefit of his widow and minor children, exclusive of any claim of creditors and others, in order that such widow and children may be protected and provided for, and may not become public charges to the state. Death is a tragedy. The death of the head of the family, or the father, tends to throw the family into commotion and bewilderment. The father, the head of the family, has been the bread winner and financier, and quite frequently the widow has never had any experience in looking after the business affairs, and the minor children of course have no capacity to do so. Quite frequently the father may be indebted and have numerous creditors. Creditors, or some of them, are ofttimes inconsiderate. They have no thought of the future welfare of the family, thus ofttimes without warning thrown on their own resources. In such case it is easy to see that, if no protection was afforded and thrown about the surviving members of the family, and possibly the pressing and insistence of the creditors for the payment of the debts due them coming at a time when the surviving members of the family are most greatly depressed, and the condition of the business of the deceased may be in a chaotic state, many such families would be wrecked, and the surviving members of such family or home be caused much suffering, anguish, and uncertainty of mind, or much inconvenience in procuring the necessities of life, and possibly be thrown on the state for actual support. The state, therefore, in order to protect such family and itself against such conditions, and being also deeply interested in the development of the surviving members of the family, for the family, the home, is the source from which its future citizens are recruited, it throws about such family at such time the arm of its protection, and says to all creditors or those having claims against the estate, — this much of all the property that was left shall be set aside for the protection of the surviving widow and minor children. This much shall be exempt. There is exempt to the surviving widow and minor children under our law out of all the property left, and which was not encumbered by the deceased wife or husband, first, the same amount as could have been claimed by the hus — 512 — band during his lifetime as exempt from execution; to wit, the sum .of $500. In addition thereto, the absolute exemption provided by law; and, further, additional property to the extent and of the value of $1,500, — all of which shall be exempt from any debt owing by the deceased. In addition to this, if these are insufficient for the support of the widow and children, and there is other estate, the court in its discretion may make additional allowances, provided that in an insolvent estate such additional allowances shall not be for more than one year. In these exemption statutes, aliens are not mentioned and are not recognized; and such exemption statutes were never intended to apply to nonresident aliens who never have, and never do, intend to become residents of our state, and who never have, and never intend to have, and maintain their home in our state, and who owe no duty to the state, and to whom the state owes no duty. It is true that aliens can purchase and sell, and take by will, donation, succession, or distribution, which rights are protected under treaty ■arrangements between the various nations, but exemptions are matters which are entirely foreign to the intent and purpose for which treaties ■are executed. The plain intent of the exemption laws is for the protection of the home and the family, of residents within the state, and the surviving widow and minor children thereof. There is no home or family within ■the meaning of the exemption laws, if the father or head of the family lives permanently in North Dakota, and the wife or mother lives permanently in Austria-Hungary, or other foreign nation, or in another of our states, with no intention, or circumstances indicating an intention, to ever become a resident of our state, or become a member of the home of one who is a resident of our state. The law contemplates a family living together and existing as a family. The exemption laws are always liberally construed, and there might ■exist circumstances where the husband lived within our state and the wife for the time being was a resident of a foreign nation or a resident of a sister state, where, notwithstanding that fact, they could, with propriety and with some degree of legality, lay claim to such exemptions. Dor instance, had the husband left Austria-Hungary for the United States, and come to North Dakota with the purpose of establishing a permanent residence and home, and with the understanding — 513 — with his wife before he left — it being assumed for the purpose of this illustration that the husband is poor, — that as soon as he was able to earn enough money to send for his wife he would do so, and that intention was present with both the parties in good faith at all times; and if there were correspondence between them which showed that it was the intention of both that the wife should follow the husband as soon as the husband could send for her, or as soon as she could by any means reasonable make the trip to join her husband; or it was shown that she had fallen sick and was unable physically to make the trip, yet always had the desire and intention of doing so as soon as she became physically able, — in such case, with the liberal construction given to the exemption laws, such person might be granted exemptions. It is no fault of hers in such case that she cannot be with her husband. She desires to be, she always intends to be, and the domicil of her husband as a general rule of law being that of the wife, and intent being at the very foundation of residence, such good intention, with the good faith otherwise shown, may be sufficient for the law to say that her real residence is in fact with her husband, though she be physically absent therefrom. This same reasoning would apply to the husband coming from a sister state under similar circumstances and conditions. If there is a good and sufficient reason why the wife is not with her husband which is based upon good faith, and is coupled with an intent and desire on the part of the wife to join her husband at the first opportunity, or as soon as it is possible, whatever the cause may be which prevents her joiniDg him, then in such case by reason of the liberality of the construction of the exemption laws, the construction thereof may be extended to include cases of this kind. On the other hand, where testimony shows that an alien wife whose husband has come to this country and established a home in one of the states has always maintained her residence in the foreign land or nation, has always maintained her allegiance to the authority of such foreign state, who never has intended or expressed any intention, or given any evidence of an intention, to become a resident of the state in which her husband has established his home, has never expressed any desire to renew the family relations or again make the home complete by joining her husband in his home, or expressing any desire or intention to do so, she can have no benefit of the exemption laws of this state, and the exemption laws were not meant to include — 514 — such persons. The most liberal construction that can be placed upon the exemption laws is, they are for the benefit and protection 'of the residents, the family, and home of residents within this state, or at the very farthest, those who have a present intention in good faith to become residents of the state and members of the family or home of some person who is a resident of, and who has his home within our state. It is conceded in respondent’s statement of facts that she is not now,, and never was, a resident of said county (Stark county) or of this state, but since birth has been, and now is, a resident of Austria-Hungary, Europe. And it must therefore be conceded, from these facts and from the whole record, that she never had any intention of becoming a resident of Stark county, North Dakota. This being true, she is not entitled to personal property to the value of $1,500, nor any other amount, as an exemption. The question now under consideration turns largely upon whether we consider the statute under consideration one of exemption or of inheritance. Despondent’s theory really is that the statute in question is a statute of inheritance, and cites some authorities which tend to sustain this position. Others are not in point. One of the cases cited by respondent is the Grieve’s Estate, 165 Pa. 126, 30 Atl. 127. This decision is quite an important one, but we believe is rather against the position taken by the respondent, and is in harmony with the position which we have taken; that is, that the statute is one of exemption, and not of inheritance. The syllabus in the Grieve’s Case is as follows: “Where, a husband leaves his wife in a foreign country with the understanding that she is to follow him when he shall have made a home for her in this country, and he subsequently settles in Pennsylvania blit does not inform his wife of his whereabouts, and afterwards bigamously marries another woman, and then dies, the first wife is entitled to the widow’s exemption out of his estate, if it appears that she was always, willing to join her husband and would have done so if she had not been kept in ignorance of his whereabouts.” In this case there was, not only an agreement that the wife would follow and live with her husband in his new home, but a reading of the case discloses that she always had a desire and intention to do so, and was only prevented from doing so by reason of ignorance of his whereabouts. When we take into consideration that a person’s residence — 515 — depends, to a considerable extent at least upon tbe intention, we have no hesitancy in agreeing with the reasoning in the Grieve’s Case, when all the facts in the case are fully considered. The Grieve’s Case is really an authority in point to prove the principle which we believe is the proper one; that is, that the statute is one of exemption. The Grieve’s Case in fact holds that the statute is one of exemption and the widow-had brought herself within its terms. There is much authority also for the position which we have taken. The following authorities cited by the appellant in his brief sustains the proposition that the statute is one of exemption: Ex parte Pearson, 76 Ala. 521; Allen v. Manasse, 4 Ala. 554; Coates’s Estate, 12 Phila. 171; Spier’s Appeal, 26 Pa. 233; Platt’s Appeal, 80 Pa. 501; Monk’s Estate, 9 Montg. Co. L. Rep. 113; Auerbach v. Pritchett, 58 Ala. 451; Talmadge v. Talmadge, 66 Ala. 199; Shannon v. White, 109 Mass. 146; Barber v. Ellis, 68 Miss. 172, 8 So. 390; Richardson v. Lewis, 21 Mo. App. 531; Re Rose, 158 Cal. 428, 111 Pac. 258; Austin’s Estate, 73 Mo. App. 61; Hascall v. Haffard, 107 Tenn. 355, 89 Am. St. Rep. 952, 65 S. W. 423; Daniels v. Taylor, 76 C. C. A. 139, 145 Fed. 169, 7 Ann. Cas. 352; Alston v. Elman, 39 Tex. 158; Smith v. Howard, 86 Me. 203, 41 Am. St. Rep. 537, 29 Atl. 1008; Medley v. Dunlap, 90 N. C. 527; Graham v. Stull, 92 Tenn. 673, 22 S. W. 738, and note in 21 L.R.A. 241. We are clear that the statute under consideration, § 8725, Compiled Laws of 1913, is an exemption statute, and not a statute of inheritance. There being, therefore, no exemptions of which the respondent could claim the benefit, the disposition of the property in question by will cannot be questioned; the will never having been set aside, and is in full force and effect. The judgment of the lower court is reversed, and the case is remanded for a new trial, each party to pay their own costs in the lower court and in this court.