Opinion
No. 11466
October 14, 1936.
Fulton Superior Court. April 25, 1936.
Section 81-206 of the Code provides for perfecting service by publication where the defendant resides out of the State. The fact of non-residence must be made to appear to the court, and thereupon the notice shall be published as prescribed. Section 81-207 makes the further requirement, when service of a non-resident is attempted by publication, that if the residence or abiding-place of the non-resident is known, a marked copy of the newspaper must be mailed by the clerk to the party at the residence or abiding-place as shown, and the clerk must make an entry of his action in so doing upon the petition or other writ. Compliance with the provisions of these two sections of the Code is necessary to give the court in which the proceeding is filed jurisdiction of the case; and if, without so complying, the plaintiff proceeds to try the case and have the court enter a decree, such a decree is void, and at the suit of the defendant upon whom service has not been perfected, to have the decree declared void, the decree should be set aside. The court in the present case did not err in so holding.
Vacation of divorce decree.
Before Judge Moore.
John I. Kelley and Edith Campbell, for plaintiff in error.
Alston, Alston, Foster Moise, contra.
A petition was brought by Mrs. Elizabeth Clark Stiles against W. II. Stiles Jr., to set aside a verdict and decree of divorce. At the conclusion of the hearing the court passed an order adjudging the verdict and decree null and void, and setting them aside, on the ground that no legal service of the defendant was perfected in the divorce proceeding. The husband of the defendant in error was an officer in the United States Navy until March 15, 1935, and was stationed with his ship at Long Beach, California. On that date he retired from the naval service, and so advised his wife by letter. He returned to Georgia, and on April 13, 1935, filed in Fulton superior court a petition seeking a divorce, alleging that the wife was a "non-resident of the State of Georgia, and, as your petitioner alleges upon information and belief, is a resident of Long Beach, California." He obtained an order for service by publication. No order, original or nunc pro tunc, declaring service perfected, has ever been entered. The suit was made returnable to the July term of Fulton superior court. Citation was run during the months of May and June, the last publication being on June 10. No copy of the paper containing the publication was filed with the clerk and mailed to the defendant within the time required by law, which requires that a copy of the paper shall be filed with the clerk at least thirty days before the term next after the order for publication; nor was any paper mailed to her at any time at Long Beach, California. On September 25, 1935, the bar docket in the clerk's office showed an entry to the effect that a copy of the paper was mailed to defendant at "Seattle, Washington, General Delivery." There was no entry of such mailing by the clerk on the petition or other writ. On October 2, 1935, the plaintiff obtained an uncontested verdict, and on November 14 a second verdict and decree. On November 23 his attorney mailed a copy of the decree to the defendant at her then address in Clinton, Connecticut. This was received by the defendant on December 4. She promptly sought legal advice, and her attorney advised her husband's attorney that a petition would be filed to have the verdicts and the decree set aside, she never having had her day in court, never having been served either personally or by publication, and having had no knowledge or notice of the pendency of the petition for divorce until after the decree had been granted.
Thereafter, on January 14, 1936, the wife filed her petition in which she set out the foregoing facts, and alleged that on the date her husband retired from the naval service, March 15, 1935, she was living in the Gaytonia Apartments, 212 Quincy Avenue, Long Beach, California, having lived there since November, 1934, and said apartment being the same which had been selected by her husband and which had been occupied by her and her husband during the previous winter when they were stationed at Long Beach; that she continued to live at that address in Long Beach until the latter part of June, 1935; that any communication sent to her at that address after her leaving would have been forwarded to her, as she left her forwarding address; that she wrote to her husband and his mother at Cartersville, Georgia, about once each week, telling them where she would be upon each change of address; that no local address was given in the plaintiff's petition or in his affidavit thereto, as required by law, notwithstanding the same was known to him, and he had committed a fraud on the court and on the wife; that the record itself showed that the attempted service was futile and ineffective, and was no service at all; that the attempted effort to serve the defendant was further illegal, futile, and no service at all, for the reason that the paper was not posted within the time required by law, and the mailing of the paper on September 25 to Seattle, Washington, General Delivery, when the defendant was not there, was not only too late as a matter of law and after the expiration of the time of mailing as required by the statute, but the same, had it been received, would have been too late for the defendant to have appeared on October 2 for the trial of the case. The wife further alleged that the husband had no ground for divorce, and she prayed that the verdicts and judgment and decree be vacated and set aside and that she be permitted to plead.
W. H. Stiles Jr. filed his answer to this petition. He alleged that Elizabeth Clark Stiles was not a resident of Long Beach, California, at the time he would have been required to file a copy of the newspaper with the clerk of the court and cause a copy of the same to be mailed to her if her residence or abiding-place had been known; that he did not know her address, local or otherwise, so as to allege the same or to comply with the statute as to the mailing of the notice to her; that as soon as he learned where mail addressed to her might probably reach her, to wit, General Delivery, Seattle, Washington, he promptly had his attorney cause the clerk of the court to mail a copy of the newspaper to her, as provided by statute in such cases, even though the time had expired in which this should have been done as a legal duty. By amendment he alleged: "Plaintiff shows that he had no knowledge of defendant's residence or probable whereabouts, so as to enable him to comply with the requirements of section 81-207 of the Civil Code of Georgia of 1933, by filing a copy of the newspaper in which said notice was published and by having the clerk of said court mail the same to the defendant within the time and as required by said statute, where said address is known. Plaintiff alleges on information and belief, and so charges, that the defendant was not a resident of Long Beach, California, either at the time said suit was filed or at any time thereafter, and that she was not abiding in Long Beach, California, at the time said statute required the filing of said newspaper and the mailing of a copy thereof to the defendant; and that he had no information as to her probable whereabouts or place of residence at the time contemplated by said statute, or at any other time, so as to enable him to comply therewith, his first information having been received just before the clerk of the superior court of said county mailed the notice to her addressed to her in care of General Delivery, Seattle, Washington."
A rule nisi having been issued, at the hearing the counsel for W. H. Stiles Jr. insisted that the pleadings contained an issue of fact, and insisted that the case should be tried by a jury. Counsel for Mrs. Stiles insisted that it affirmatively appeared on the face of the record that the decree of divorce was void, and that the court, without the intervention of a jury, should pass an order vacating and setting aside the verdicts and the decree on the ground that it affirmatively appeared on the face of the record that no service had been perfected on Mrs. Stiles, and that the court was without jurisdiction to grant a divorce in said proceeding. Without hearing evidence, the court adjudged that the verdicts and the decree were void, and set them aside. To this judgment Stiles excepted.
The plaintiff filed his petition for divorce on April 13, 1935, and alleged that "the defendant is a non-resident of the State of Georgia, and, as your petitioner alleges upon information and belief, is a resident of Long Beach, California." This petition was verified, the plaintiff thus disclosing to the court by his affidavit that his information was that the defendant's residence or abiding place was Long Beach, California. Section 81-206 of the Code provides for perfecting service by publication where the defendant resides out of the State. The fact of non-residence must be made to appear to the court, and thereupon the notice shall be published as prescribed. On April 15, 1935, the court ordered service perfected by publication. Section 81-207 of the Code makes a further requirement when service is attempted by publication upon a non-resident in the event the residence or abiding-place of the non-resident is known. In such instances, in addition to the published notice, a marked copy of the newspaper must be mailed by the clerk to the party at the residence or abiding place as shown, and the clerk must make an entry of his action in so doing upon the petition or other writ.
In the present case a marked copy of the newspaper containing the notice should have been mailed thirty days before the July term, in order to comply with the statute. This was not done; and the question is whether failure to do so was so jurisdictional in character as to make the judgment obtained in the case void and of no effect whatever. It is only in cases where the residence or abiding-place is known that the marked copy must be mailed. The knowledge of the plaintiff is therefore a matter of inquiry. If, for example, the affidavit attached to the original suit against a non-resident should allege non-residence, and nothing more, and if it could be made to appear later as a fact that the plaintiff did know, or after proper inquiry could have ascertained, the residence or abiding-place of the defendant, the failure to give that information to the court and procure the clerk to mail the copy would render void the judgment obtained in such proceedings. But that is an issue of fact which may be inquired into upon proper allegation. The present case presents no such issue. By his affidavit the plaintiff says that the defendant was a resident of a named place, Long Beach, California. He should have required the clerk to mail the notice, a marked copy of the newspaper, to that place. Admittedly this was not done, and his failure to do so within thirty days from the July term rendered void the judgment later procured, under the authority of Millis v. Millis, 165 Ga. 233 ( 140 S.E. 503). In that case the plaintiff procured an order to serve the defendant by publication, upon it appearing to the court at his instance that the defendant was a resident of Cleveland, Ohio. The marked copy of the newspaper containing the notice was sent to Cleveland, and proper entry was made by the clerk. The defendant contended, in a subsequent attack upon the judgment, that the plaintiff knew more respecting her residence and abiding-place than he informed the court about, namely, that he not only knew that she resided in Cleveland, but he also knew her street address, and that he withheld that information. In the opinion the court pointed out that if as a fact the plaintiff knew the local address of the defendant, it was his duty to give that information and require the notice to be mailed there, and that failure to do so rendered the judgment void. The basis of the holding in the Millis case is that the requirements of §§ 81-206 and 81-207 are jurisdictional, and they must be "strictly and literally complied with." This court said: "We have seen that the requirements of our statute, and especially those which are jurisdictional, must be strictly and literally complied with. Non-compliance with such of these requirements as are not jurisdictional can be taken advantage of before judgment, but does not render the judgment void. Compliance with those requirements which are jurisdictional must be had before judgment. Failure to comply with such requirements before judgment renders the judgment void. This brings us to inquire whether the order adjudging that perfection of service by publication had been effected, and the entry of such order upon the petition by the judge before trial, are jurisdictional. Service of the notice, both by publication and by mailing it to the non-resident defendant, is jurisdictional. Lack of either one would render the judgment void."
It is true that the allegations in the Millis case left open the question whether the plaintiff did know the local address. If he knew it and did not cause the notice to be mailed thereto, the judgment was void. If he did not know it, and only knew Cleveland as the address, that was all the law required of him, and the service was good. In the present case, however, there can be no dispute as to what the plaintiff did know when he filed his suit. By his affidavit he says that the defendant was a resident of Long Beach, California. Having that knowledge, from whatever source derived, it was his duty to furnish it to the court. He furnished it, and it was then his further duty to see that the notice was mailed by the clerk to that address; and in the absence of such mailing, no jurisdiction of the defendant was ever obtained. It is no answer to say that the plaintiff's failure to have the notice mailed by the clerk was due to the fact that he now knows that the defendant did not reside in Long Beach, and was not abiding there at the time the petition was filed or at any time thereafter. In other words, he seeks to raise a question of fact with respect to the residence or abiding-place of the defendant at the time the suit was originally filed. But the question is, not whether in fact the defendant was residing at Long Beach or not, but what knowledge the plaintiff had of the defendant's residence or abiding-place. Absolute knowledge is not required. Knowledge to the best of his information and belief is all that is necessary; and this he furnished to the court by his affidavit attached to his petition; and it was then his duty to have the clerk mail the notice to the address given.
The question which this record presents is one-of law. The facts are not in dispute. The suit was brought to the July term, 1935. A copy of the paper containing the notice was not mailed until September 25, and was not then mailed to Long Beach, California, but to Seattle, Washington. "Service before judgment is the general rule of procedure. . . In this State the filing of the petition in the clerk's office will be considered as the commencement of the suit, if service is perfected as required by law. But if no service is made, the mere filing of a petition will not suffice to authorize the action to be treated as commenced and perpetually pending. Filing followed by service creates a pending suit from the date of filing. But if there is no service, the process loses its vitality, and the effect mentioned does not result." Stallings v. Stallings, 127 Ga. 464, 466 ( 56 S.E. 469, 9 L.R.A. (N.S.) 593). The failure to mail the paper within the time required by the statute and the failure to mail it to the address given in the petition constituted jurisdictional defects, and rendered void the verdict and judgment thereafter entered; and this may be declared by the court without the aid of an inquiry before a jury. The mailing of a paper after the statutory period for mailing, to wit, thirty days prior to the next term, and to a place other than the place of residence given in the petition, had the same effect as though process had issued and had not been served in time for the term to which it was returnable, and was null and void, and there was no pending suit at the time the verdicts and judgment were taken. City Bank Trust Co. v. Graf, 175 Ga. 340 ( 165 S.E. 238). See also Parish v. Parish, 32 Ga. 653; Love v. National Liberty Insurance Co., 157 Ga. 259 ( 121 S.E. 648); Joyner v. Joyner, 131 Ga. 217, 223 ( 62 S.E. 182, 18 L.R.A. (N.S.) 647, 127 Am. St. R. 220). "In order for the court to obtain jurisdiction of the defendant, he must not only have been served in the manner pointed out by law, but there must be a legal return of such service." Wood v. Callaway, 119 Ga. 801, 803 ( 47 S.E. 178). Further, the Code, § 81-207, requires the clerk, after mailing the paper, to "make an entry of his action on the petition or other writ in said case." There is no such entry on the petition or other writ in this case. In fact it is admitted that no paper was mailed until September 25, and that the entry then made showed the paper was mailed, not to Long Beach, California, but to Seattle, Washington. In view of the facts appearing on the face of the record, and of the authorities which we have cited, the judgment of the court below must be
Affirmed. All the Justices concur, except Atkinson, J., absent because of illness.