Fowler v. Cooper

LOVELY, J. This is an action brought by plaintiff to annul the marriage between himself and defendant upon the alleged contention that defendant at the time such marriage was entered into was the lawful wife of another person then living. The action was tried to the court, who found in favor of the defendant. The evidence to support the claim of the plaintiff consisted of the record of a divorce proceeding in which the defendant, Sophia L. Cooper, was plaintiff, and her husband, James H. Cooper, was defendant. In that action service had been made by plaintiff’s attorney therein, who, under a mistaken impression, evidently, of the application of the statute providing for substituted service, served the summons and complaint upon the defendant by leaving a copy thereof at his last and usual place of abode, with a person of suitable age and discretion therein. It was upon the service so made and verified that a judgment in favor of plaintiff and against defendant, divorcing the parties from the bonds of matrimony, was rendered. The claim by plaintiff in this action is that the record of such divorce does not show affirmatively that plaintiff and defendant in such divorce suit were legally separated in that action, and that it follows that the plaintiff and defendant in this suit could not have lawfully entered into the marriage relation, by reason of the existence of such former marriage of the wife. So far as this question is concerned, we may ■admit that such would be the effect of that kind of service, if there were no other on which to predicate, such judgment; for there is no doubt that in divorce proceedings the summons and complaint cannot be served in that way. However, some six years after the judgment had been entered, and after the plaintiff and defendant in this action were married, the plaintiff in the divorce case (defendant here) obtained an affidavit from the person (one Papst) to whom the original summons and complaint were delivered at defendant’s usual abode, stating substantially that he took such summons and complaint from the plaintiff’s attorney, and at his request delivered the same to the defendant therein on the same day. This affidavit was corroborated by the affidavits of the defendant in that suit which stated that he received the summons and complaint at the time stated; that he afterwards called upon plaintiff’s attorney and 25 stated that he could not defend said action upon the merits, never had defended the same, and had made no objection to the judgment, but abided thereon in good faith. These affidavits were, upon motion to the district court in which the original divorce judgment was entered, ordered filed of record and made a part of the judgment roll in that case; and it is contended by defendant here that this was an amendment to the original proceedings, showing that personal service of the summons and complaint had been made in fact, and that it was within the authority of the court to amend its proceedings, under the provisions of G. S. 1894, § 5267. If this view is tenable, the correction of the judgment roll shows jurisdiction acquired by proper service actually made within the proper time, and sustained the judgment for divorce in the former action. The trial court in this case must have held such view, and we concur therein. We are of the opinion that the statute allowing amendments of legal proceedings is broad enough in terms to authorize the court, upon proper cause shown, to supply an omission of actual facts in the proof of service of the summons and complaint to be added to the judgment roll. Such view is not only within the letter, but the spirit, of the statute. The facts all appear in the present record which support a final judgment for divorce, upon which all the parties interested seem to have acted; and there is no reason why, against the best dictates of public policy, the court should be driven, upon a mere technicality, without merit, to annul a divorce which has been acted upon in good faith, where the omissions to show the court acquired jurisdiction have been supplied by amendment and correction of the judgment roll. Had the affidavit of Papst been filed, instead of the affidavit of the attorney, in the first instance, the record would have been complete, and the order filing it later, as it subsequently stood, made it complete. It follows that the judgment upon the service as established was a perfect bar to this action at the time this suit was commenced. We think there is no reason to doubt that the court can supply that omission, under the amendment statute referred to, nunc pro tunc. Burr v. Seymour, 43 Minn. 401, 45 N. W. 715. The order of the court below is affirmed.