The Portland daily press., 1895-04-27
A POINT ABOUT DIVORCE.
A Law Court Decision That viii Re-
strain ReckleSsness.
A Divorce of Mrs. Angie spinney Annulied
on Account of fraud. ="

Divorce of Mrs. Angie Spinney Annulied
on Account of fraud. -
A decision was announced by the law
court yesterday, in a case of great inter
est to ths legal fraternity as well as to
parties contemplating divorce proceed
fngs 1t will be likely to restrain. if not
to entirely prevent, the careless and
reckless manner with which parties have
been in the habit of making oath to
allegations in libel for divorce that the
residence of the libeIlee is unknown,
and the diligence that has been used to
discover the whereabouts, in order to
give the court jurisdiction by publica-
ton in some obscure newspaper, which
the libellee is not likely to see. When
it is realized that divorce obtained
upon an affidavit which is not in fact
true, and known to be false, will be
annulled upon petition to the court, it
will serve to correct an abuse of process
which it is appeared has been too fire.
quent. The facts of the case sufficiently
appear in the rescript.
KENNEBEC COUNTY.
Gustavus W. Spinney, Petr VS. Angie
Spinney.
Rescript by Judge Walton. This is
petition in which the petitioner AYERS
that his wife fraudulently obtained a
divorce from him, without his knowl-
edge, and without a legal service of her
libel; and he asks to have the divorce
annulled. The petition was addressed
to the justice of the Superior Court for
the county of kennebec, by whom the
divorce was granted. The justice of that
court dismissed the petition, holding
that the service of the libel was legal,
and that the alleged fraud was not
proved. We think the ruling that the
service OF the libel was legal was errone-
Gus; and that. upon the uncontroverted
facts in the case, the divorce should
have been aunulled.
The only service of the libel was by
publication in a newspaper. Mr.. Spin
ney never saw the newspaper. and never
had any actual notice of the pendency of
the libel till after an eX paFte hearing
had been had and the divorce granted.
10 obtain such an order of notice, Mrs.
Spinney made an affidavit that she had
used due diligence to ascertain the
residence OF her husband and that she
had been unable to do so. This affidavit
was clearly false. Whether it was will
fully false we will not stop now to in
&c w
dence, as his wife we'll knew. was in the
town of Starks in this state. He had
resided there for many years. His wife
hah resided there with him. He owned
and occupied house there, voted there,
paid taxes there, and at the time of
which we are speaking, he was super1n-
tendept of the schools OF the town. He
had not abandoned his home or his wife.
She had left him. Mrs. Spinney knew
perfectly well where her husbands resi-
dence was, and that it was in the town
of Starks in this state. 1t may he true
and probably is true, that at the very
moment when she made her affidavit,
she did not know in what town her
husband was; for he was a travelling
agent for the sale of nursery stock, in
and about Plymouth in the Common
wealth of Massachusetts,. But he was
not secreting himself; and there can
not be the slightest doubt that. by the
use of only ordinary diligence, personal
service of the libel could have been OBJ
tanned. A wife who knows perfec thy
we'll where her husbands residence is,
and that it is in this state, is not Justi-
fed in swearing that she does not know
where her husbands residence is simply
because she does not know. in what
town he is, or where he is staying, at the
moment when the oath is administered to
her, I he statute declares that when
the residence of thelibfllee is known. it
shall be named in the libel, and actual
notice shall be obtained, notwithstand-
ing the libellee is out of the state.
Notice in a newspaper which the libellee
never sees, is not actual notice.
1t appears that Mrs. Spinneysleft her
husband in 1888; that as early as April,
1891, she had become acquainted with a
man whom she has since married, dur
ing the tendency Of this petition. She
says that he then backed letter for
her. And it, appears that from that
time on, abe became very solicitous to
obtain divorce from her husband. Her
attorney says that she was in his Office
once week at least. July 81, 1891, she
made her affidavit declaring that she had
used due diligence TO ascertain her hus-
bands residence, and had been unable
to do SO. The affidavit was false. She
had used no diligence at all, and she
well knew where her husbands residence
was. Whether it was w1ifully false or
not, it is the opinion of the court that
the service of the Il bel was Illegal and
insufficient to confer upon the court
jurisdiction; that the apparent juris
dietion was colorahls only and not real
and that it is the duty Of the
justice of the Superior Court, by
whom the divorce was granted, to an
null it.
=