Freeman v. Freeman

Sewell, J.:

It appears from the record that this action was brought to obtain a divorce on the ground of adultery. The summons and complaint were not legally served, but the defendant employed an attorney who appeared and served upon the plaintiff’s attorney a copy of the answer, duly subscribed by him, which put in issue the allegation of adultery. Thereafter a notice of trial was served by him for a Special Term for trials. The attorneys for the plaintiff and defendant consented to a reference, whereupon the court designated a referee and an order was entered referring the issues without the consent or agreement of the attorneys or the parties, as to the person named. The action was brought to a hearing before the referee, the plaintiff appearing in person and by her attorney and the defendant by his said attorney. Evidence in support of the allegations of the complaint was taken and the referee found in favor of the plaintiff. Upon the application for an interlocutory judgment the court denied the motion and set aside all the proceedings since the issuance of the summons, upon the ground that the appearance of the attorney for the defendant by serving an answer and proceeding in the action was not sufficient to excuse proof by affidavit of the service of the summons.

It is the settled law of this State that a voluntary general appearance in an action is equivalent to personal service of process, and confers jurisdiction of the person on the court. (Code Civ. Proc. § 424; Olcott v. Maclean, 73 N. Y. 223; Matter of McLean, 138 id. 158; Reed v. Chilson, 142 id. 152.)

Ho different rule obtains in an action for a divorce. (Lynde v. Lynde, 41 App. Div. 280; Jones v. Jones, 108 N. Y. 415; Strauss v. Strauss, 122 App. Div. 729.)

The determination of the appeal also requires a consideration of the question whether the order of reference was in violation of that part of rule 72 of the General Pules of Practice which provides that in an action for a divorce the court shall not order a reference without proof by affidavit of the service of the summons and complaint, and that notice of appearance and retainer shall not be sufficient to excuse such proof.

It was held in McCarthy v. McCarthy (143 N. Y. 235) and Lowenthal v. Lowenthal (157 id. 236) that where the case is litigated it is not necessary to produce an affidavit stating that the adultery charged was committed without the consent, connivance, privity or procurement of the plaintiff, etc., as provided in another clause of this rule; that this provision was made for cases of default only. It is obvious from reading the provision in question that it was only intended to apply in case of the defendant’s default. It is also plainly inferable from the language used that, in case of a default, the plaintiff is not confined to “ proof by affidavit.” The words “Notice of appearance and retainer shall not be sufficient to excuse such proof,” which follow the general provision, clearly indicate that other evidence, showing jurisdiction of the person of the defendant, may be received, and may be sufficient to excuse proof by affidavit.

This construction is necessary to give any meaning or effect to these words. One of the most familiar rules for the construction of statutes requires that effect must be given, if possible, to all the language employed. (Matter of New York & Brooklyn Bridge, 72 N. Y. 527; People ex rel. Freligh v. Matsell, 94 id. 179.) Every part must be viewed in connection with the whole so as to make all its parts harmonious, if practicable, and give a sensible and intelligent effect to each. (People ex rel. Gilmour v. Hyde, 89 N. Y. 18.)

I do not think the ease of Ives v. Ives (80 Hun, 136) is in point. In that case the order of reference designated as referee a person agreed upon by the counsel for the respective parties, and the court held that the reference was in violation of a provision of rule 73,* now 72, which forbids a reference of a matrimonal action to a referee nominated by either party or to a referee agreed upon by the parties. It is too clear for argument that this provision was only intended to apply to contested cases. The words “ A referee agreed upon by the parties ” admit of no other reasonable construction.

It follows that the order appealed from should be reversed and the case remitted to the Special Term for rehearing, with ten dollars costs and disbursements.

All concurred, except Kellogg, J., dissenting in opinion.

* See General Rules of Practice, 1888, rule 73.— [Rep.