Perweiler v. Perweiler

CROPSEY, J. This is an application for an order of publication of the summons in an action for divorce. The order is sought on the ground that the defendant is a nonresident of the state and cannot be served within it. The affidavit of Charlotta Pressnall is not sufficient. It does not state when she visited the defendant, or sufficient facts to show that the defendant cannot be served within this state. The only other affidavit submitted is that of the plaintiff. An order of publication of the summons in an action for divorce cannot be made merely upon the affidavit of the plaintiff. This seems to be clear from the provisions of the Civil Code, as well as upon principle and under the authorities. Section 425 of the Civil Code expressly provides that a summons cannot be served by the plaintiff; and it has been held that an order of publication should therefore not be granted merely upon the affidavit of the plaintiff. Hall v. Hall, 10 N. Y. Supp. 223. Furthermore, section 831 of the Civil Code provides that upon the trial of such an action neither of the parties is competent to testify against the other, except to prove the marriage or to disprove the charge of adultery. This section was amended last year by permitting a party to the action to give certain testimony when certain defenses are raised; but these provisions have no bearing on this question. Under this section the courts have held that a party can testify only to the matters there permitted. So it has been held that a plaintiff cannot testify to the fact of nonaccess of the defendant (Taylor v. Taylor, 123 App. Div. 220, 108 N. Y. Supp. 428); nor as to defendant’s means (Valentine v. Valentine, 87 App. Div. 156, 84 N. Y. Supp. 37); nor to facts showing the opportunity for the commission of the act charged against the defendant (Budd v. Budd, 55 App. Div. 113, 67 N. Y. Supp. 43; Colwell v. Colwell, 14 App. Div. 81, 43 N. Y. Supp. 439). A party may, however, testify in favor of the other party as to matters other than proof of the marriage and disproof of the adultery. Section 831 merely prohibits a party from testifying against the other party. Bailey v. Bailey, 41 Hun, 424. And it has been expressly held that the jurisdictional fact of a party’s residence cannot be es [786] tablished by the testimony of the plaintiff. Dickinson v. Dickinson, 63 Hun, 516, 18 N. Y. Supp. 485. As a plaintiff in a divorce action cannot personally serve the summons, and as the proof of jurisdiction cannot be given by him, it would seem to follow logically that the court cannot acquire jurisdiction of the case where the service of the summons is pursuant to an order of publication, if such order is based solely upon the affidavit of the plaintiff. For that reason the order of publication should not be made merely upon such proof. Although plaintiff’s affidavit cannot be used as the basis for acquiring jurisdiction, it may be that it can properly be received by the court upon motions arising incidentally in the action. Nichols’ New York Practice, § 531; Kirby v. Kirby, 1 Paige, 261; Gregory v. Gregory, 33 N. Y. Super. Ct. 1, 32. Additional proof should be submitted of the defendant’s nonresidence and absence from the state at the present time.