This is a petition in which the petitioner avers that his wife fraudulently obtained a divorce from him, without his knowledge, 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. The case is before the law court on exceptions, accompanied by a full report of the evidence.
We think the ruling that the service of the libel was legal, was erroneous, and that, upon the uncontroverted facts in the case, the divorce should have been annulled.
The only service of the libel was by publication in a newspaper. Mr. Spinney never saw the newspaper, and never had any actual notice of the pendency of the libel till after an ex parte hearing had been had and the divorce granted. To 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 wdlfully false, we will not now stop to inquire. It was in fact false. His residence, as his wife well knew, ivas in the town of Starks in this State. He had resided there for many years. His wife had resided there with him. He owned and occupied a house there, voted there, paid taxes there, and at the time of *491which wc ai’e speaking, he was superintendent 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 husband’s residence was, and that it was in the town of Starks in this State. It may be true and probably is true, that, at the very moment when she made her affidavit, she did not know in what town her husband then was : for he was a traveling agent for the sale of nursery stock, in and about Plymouth in the Commonwealth of Massachusetts. But he was not secreting himself; and there can not be the slightest doubt that, by the use of only ordinary diligence, a personal service of the libel could have been obtained. And this brings us to the consideration of an important question of law.
Is a wife, who knows perfectly well where her husband’s residence is, and that it is in this State, justified in swearing that she does not know where her husband’s 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? We think not. And yet the court below seems to have so held. The language of the court, as stated in the exceptions, is this: "To construe the statute as meaning actual residence, in its usual sense, hardly seems reasonable ; for, in that case, a person, by being absent from his residence, and out of the state, could avoid the service of process for divorce indefinitely, as service by copy and summons, left at the place of his last and usual abode, is not good, without proof of actual notice. . . . Therefore, in making oath that she did not know the present residence of her husband, although she had used reasonable diligence to ascertain it, she must be held to have meant his whereabouts,— the place where he was then staying.” And upon this interpretation of the statute, and this construction of Mrs. Spinney’s affidavit, the court held that the newspaper service of the libel was sufficient.
We can not accept this interpretation of the statute. We think it does mean "actual residence, in its usual sense.” The statute declares that when the residence of the libelloe is known, it shall be named in the libel, and actual notice shall be obtained, *492notwithstanding the libellee is out of the state. R. S., c. 60, § 4. Notice in a newspaper which the libellee never sees, is not actual notice. This statute was first enacted in 1874, chapter •184; and we entertain no doubt that its purpose was to render impossible such a notice as the one given in this case. When the libellee has a known residence in this State, and is only temporarily absent from it, an actual personal service of the libel must be obtained. In such a case, a constructive newspaper notice is not a sufficient service of the libel.
And her alleged diligence was no diligence at all. Her affidavit was made July 21, 1891. She pretends to have made some inquiries for her husband during the latter part of the preceding April. But she does not claim that she made any inquiries at or near the time of making her affidavit. About the middle of April she was with her husband at the funeral of one of their daughters ; and if it is possible to believe that she commenced immediately to make inquiries for him, for the purpose, as she says, of obtaining a personal service of her libel upon him, she admits that between April and the twenty-first of July, when she made her affidavit, she made no inquiries whatever. And in one of her answers she says she did not care to know his post office address,— that she never asked for it.
It appears that Mrs. Spinney left her husband in 1888 ; that as early as April, 1891, she had become acquainted with a man whom she has since married, pendente lite. She says that he then backed a letter for her. And it appears that, from that time on,, she became very solicitous to obtain a divorce from her husband. Her attorney says that she was in his office once a week at least. July 21, 1891, she made her affidavit declaring that she had used due diligence to ascertain her husband’s 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 husband’s residence was. And our firm belief is that the affidavit was wilfully false, and was made for the express purpose of obtaining a newspaper notice of the pendency of her libel, which she hoped and believed would not be seen by her husband, and that she would thus be able to obtain an ex parte hearing upon her libel, *493and an unopposed divorce. But if in this conclusion we are in error, still, it is the opinion of the court that the service of the libel was illegal and insufficient to confer upon the court jurisdiction ; that the apparent jurisdiction was colorable only, and not real; and that it is the duty of the justice of the Superior Court, by whom the divorce was granted, to annul it.
Exceptions sustained.
Emery, J. Concurred as follows :—