Nelson v. Stewart

COSHOW, J. The judgment-roll in the divorce case was introduced as a part of the testimony of the petitioner Nelson in his petition presented to have Walter removed as administrator, and was received without objection. It is contended by the respondent that the judgment-roll in the divorce suit shows on its face that the Circuit Court never acquired jurisdiction of the subject matter, and that the decree was void. It is contended by the appellant that this contention constituted a collateral attack upon the decree in said divorce case, and this contention is controverted by the respondent. The attack on the decree of divorce is undoubtedly a collateral attack. This has been decided so frequently [412] by this court, that the question is not now open for discussion. Tbe matter was very thoroughly considered in Stadelman v. Miner, 83 Or. 388, 401 (155 Pac. 708,163 Pac. 585,163 Pac. 983). Many of the earlier cases in this state are cited in the opinion in that case. It is contended by the respondent that the Circuit Court, in the exercise of its power in hearing and determining divorce suits, is a court of limited jurisdiction. This contention is based upon some language in some of the cases cited in appellant’s brief. It is not tenable, however. This court has several times held that the Circuit Court in divorce suits is a court of general and superior jurisdiction. The statute has provided peculiar and special means for conferring jurisdiction on the courts in divorce cases. Statutes providing for a particular kind of service are always strictly construed. It is necessary that the manner prescribed by a statute for acquiring jurisdiction of any cause be strictly followed: Hooper v. Hooper, 67 Or. 187 (135 Pac. 205, 135 Pac. 525); Smythe v. Smythe, 80 Or. 150, 154 (149 Pac. 516, 156 Pac. 785); Northcut v. Lemery, 8 Or. 316, 322; Bagley v. Bloch, 83 Or. 607, 621 (163 Pac. 425), and cases there cited. ' The appellant contends in the recital in the findings, upon which the decree is based, to the effect that the district attorney of Columbia County accepted due service of the complaint and summons in said county more than ten days prior to the trial, was binding and conclusive upon collateral attack. If this question were presented here for the first time, it would receive very serious consideration, and possibly a different conclusion might be reached. It has been decided in this court repeatedly, however, that a recital in the decree, which [413] is contradicted by tbe record upon which the decree is based, must give way to the record: Ladd v. Higley, 5 Or. 296; Heatherly v. Hadley, 4 Or. 1; Northcut v. Lemery, 8 Or. 316, 322; Knapp v. Wallace, 50 Or. 348, 354 (92 Pac. 1034, 126 Am. St. Rep. 742); Smith v. Whiting, 55 Or. 393, 400, 401 (106 Pac. 791). A decree of the Circuit Court of this state in a divorce suit is entitled to the same presumptions as to its validity as any other decree of that court. However, the presumptions in favor of such a decree cannot be invoked where the recital of the decree is contradicted by the record. If the record was silent in the instant case, then the recital in the findings, upon which the decree is based, would be conclusive. The record is not silent. The record shows affirmatively that the district attorney was not served. "Waiving for the time being the indorsement of acceptance of service on the complaint, the record shows that the district attorney was not served with summons. This court in Hooper v. Hooper, 67 Or. 187 (135 Pac. 205, 135 Pac. 525), held that service of the complaint only upon the district attorney was not sufficient. The statute must be strictly followed by service of the summons unless waived as prescribed by the statute. There is, therefore, no occasion or opportunity for invoking the function of a presumption: Smythe v. Smythe, 80 Or. 150, 154 (149 Pac. 516, 156 Pac. 785, Ann. Cas. 1918D, 1094); Odell v. Campbell, 9 Or. 296; 15 C. J., p. 827, §146, p. 831, §148, p. 832, §149; 4 Wigmore on Evidence, § 2491, p. 3534. The appellant further contends that the property settlement between Alfaretta and Walter on the date prior to the commencement of the divorce proceedings prevents Walter from now questioning [414] the divorce decree. Estoppel was formally pleaded. The vice of this argument, however, is in the fact that the alleged settlement was made before the decree was entered and even before the divorce suit was instituted. It is not shown that the settlement was made in anticipation of a divorce. Even if Walter would have been estopped by accepting the benefits of the decree, there is nothing in the instant case to establish the fact that he has in any way accepted the benefits of that decree. The decree settled no property rights. Nothing was done by Walter, so far as the record discloses, after the decree was entered, indicating his acceptance thereof. We do not wish to be understood as deciding, even if the alleged property settlement would be considered as accepting, the benefits of the divorce decree, that the result would be different in this case. The authorities heretofore cited clearly establish the principle that failure to serve the proper district attorney is a fatal omission in the necessary steps to procure a divorce, unless the district attorney has waived the service as prescribed by the statute. This court has uniformly held that a divorce decree granted was void where the district attorney neither appeared, waived service nor was served as prescribed by the statute. It must always be remembered that the marriage relation is something more than a contract: Rugh v. Ottenheimer, 6 Or. 231 (25 Am. Rep. 513). It is true it is defined by the statutes of this state as a civil contract: Section 9720, Or. L. This definition, however, must be construed as other declaratory statutes are construed in the light of the circumstances and conditions causing their enactment. Marriage is held by a great many people to be a sacrament. It was believed on the part of a large [415] percentage of our population that a marriage ceremony could only he solemnized by the church. In other words, it was deemed to be a religious ceremony, without which, no marriage could be considered binding and obligatory: 1 Schouler’s Marriage, Divorce, Separation and Domestic Relations (6 ed.), p. 17, § 13. In order to set at rest all contentions about the matter our statute has provided that a marriage is a civil contract. It is no less an institution in this state. Other parties besides the contracting parties are interested in the marriage. For that reason, Section 1020 of our Code was enacted. The state is a necessary party in a divorce suit: Hooper v. Hooper, 67 Or. 187, 189 (135 Pac. 205, 135 Pac. 525); Jacobs v. Jacobs, 79 Or. 143 (154 Pac. 749); Orr v. Orr, 75 Or. 137, 141 (144 Pac. 753, 146 Pac. 964). For these reasons the decree of the Circuit Court is affirmed. Affirmed. Bean, Burnett and Rand, JJ., concur.