(DOWNLOAD) "Holt v. Sather" by Supreme Court of Montana # Book PDF Kindle ePub Free

eBook details

Title: Holt v. Sather
Author : Supreme Court of Montana
Release Date : January 04, 1928
Genre: Law,Books,Professional & Technical,
Pages : * pages
Size : 60 KB

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Divorce ? Summons by Publication ? Omission of Name of Plaintiffs Attorney ? Summons Void ? Jurisdiction ? Alimony ? Suit Money ? Discretion ? Judgment ? Collateral Attack ? Pleading and Practice ? Answering Over After Demurrer Overruled ? Waiver ? Statutory Construction. Pleading and Practice ? Answering Over After Demurrer or Ambiguity Overruled ? Waiver of Defect. 1. Where, after defendants special demurrer to the complaint on the grounds of ambiguity, unintelligibility and uncertainty was overruled, he made answer and went to trial, the alleged defect in the pleading will be held to have been waived. Judgments ? Collateral Attack ? Validity of Judgment Determinable from Judgment-roll. 2. The validity or invalidity of a judgment, when attacked collaterally, must be determined solely from the judgment-roll. Summons ? Legal Service or Voluntary Appearance Requisite to Jurisdiction of Person of Defendant. 3. Without voluntary appearance of or legal service of summons upon defendant, the court does not acquire jurisdiction of his person and without such jurisdiction there can be no valid judgment. Same ? Service by Publication ? Strict Observance of Statutory Requirements Necessary ? Presumptions. 4. A more accurate observance with statutory provisions relative to service of summons is required in the case of constructive service than in personal service, and the presumption in favor of jurisdiction upon rendition of judgment is not as strong when the judgment is based upon constructive service as when based upon personal service. Same ? Service by Publication ? Name of Attorney must Appear in Published Summons. 5. Held, that the provision of section 9107, Revised Codes, 1921, that the name of plaintiffs attorney must be indorsed on a summons is mandatory, unless it be affirmatively shown that the absence of his name could not possibly have worked prejudice to defendant, and that under section 9119, Id., which inter alia provides that where service is had by publication, the summons shall - Page 443 contain what is prescribed by section 9107, the published summons must also bear the name of plaintiffs attorney, and that if it does not, it is void. Statutory Construction ? Long Usage and Practice Entitled to Consideration. 6. In construing a statute, common usage and practice under it, long acquiesced in by all parties concerned, is frequently of great value in determining its real meaning. Divorce ? Publication of Summons ? Omission of Name of Plaintiffs Attorney Fatal to Jurisdiction. 7. Under the doctrine that one presumption may not rest upon another presumption, held that where defendant in a divorce proceeding was a resident of another state who was served with published summons fatally defective because of the omission of the name of plaintiffs attorney therefrom, the fact that an alias summons accompanied by a copy of the complaint both bearing the name of the attorney, were mailed to his last known place of residence was an insufficient affirmative showing of non-prejudice to defendant, since the presumption that defendant received the copies would have to rest upon the further presumption that he continued to reside at his "last known place of residence." Same ? Alimony ? Attorneys Fees ? Suit Money ? Allowance in Discretion of Trial Court. 8. The matter of allowance of alimony to a wife pending suit for divorce, and of attorneys fee and suit money, is addressed to the sound discretion of the trial court.