Dissenting Opinion
Ax, P. J.I cannot in good conscience agree with the majority opinion of this court in reversing the decision of the lower court and forcing a re-trial of this divorce action, particularly in view of the fact that the complete record in this cause has indicated to me that it was fairly tried and a just and reasonable decision given. The appellant in this action in addition to raising for the first time in this court by way of his brief the question of whether or not the court below had jurisdiction to determine the cause, also urged in his brief that the decision of the court was not sustained by sufficient evidence and was consequently contrary to law. *513The action was based upon cruel and inhuman treatment, and since there was some evidence sufficient to sustain the finding of the lower court of cruel and inhuman treatment, this court properly cannot disturb such finding, in the absence of other reversible error.
In addition, the appellant seemed primarily in his brief to complain of the amount of alimony granted by the lower court to appellee. Here again after considering all of the evidence favorable to appellee, I cannot find any just grounds for reversing the decision of the lower court. The only assignment of error made by appellant was that the court erred in overruling his motion for new trial, which motion contained only the grounds that the decision of the court is not sustained by sufficient evidence and is contrary to law.
I am of the firm opinion that the majority opinion was wrong in both of its major reasons relied upon for reversing this case.
In the first instance, the majority opinion has erroneously considered that the jurisdictional question herein involves a question of jurisdiction of the subject matter, when in reality it is a matter involving jurisdiction of the particular case. The majority opinion holds that the appellee’s contention, under the authority of Sims v. Sims (1957), 128 Ind. App. 408, 146 N. E. 2d 111, that it was incumbent upon the appellant to raise the jurisdictional question for the first time in the trial court, directly contravenes the holding of our Supreme Court in the case of Wedmore v. State (1954), 233 Ind. 545, 122 N. E. 2d 1. The author of the majority opinion herein, as shown by the record, evidently participated and concurred in the opinion in the Sims case, and the Supreme Court not only denied transfer on March 14, 1958, but also subsequently denied a petition to recall its ruling denying transfer on April 22, 1958, thus evident*514ly reaffirming the law as laid down in the Sims case. It is inconceivable to me that the author of the majority opinion now wants to emasculate our well established doctrine of stare decisis by taking his inconsistent position that the Sims case was wrongly decided in order to justify his opinion in this instant case. A careful analysis of both the Sims case and the Wedmore case fails to indicate that this contention of the majority opinion is true. The quotation cited by the majority opinion from the Wedmore case, citing the case of State ex rel. Ayer v. Ewing (1952), 231 Ind. 1, 108 N. E. 2d 441, specifically refers to the rule that the question of lack of jurisdiction of the subject matter in the trial court may be raised at any time, and I have no quarrel with that. However, the Sims case correctly stated the law in Indiana when it stated “the phrase ‘subject matter of the action’ is sometimes used to refer to the thing involved in a particular case but such is not its meaning when used in the rule regarding jurisdiction,” citing Flanagan, Indiana Pleading and Procedure, §21, Comment 4: ■.
“The subject matter of an action, when reference is made to matters of jurisdiction, means the nature of the action and the relief sought. If the court has jurisdiction of the class of actions to which the particular case under consideration belongs it has jurisdiction of the particular case. Jackson v. Smith, 120 Ind. 520, 22 N. E. 431; Tucker v. Sellers, 130 Ind. 514, 30 N. E. 531; McCoy v. Able, 131 Ind. 417, 30 N. E. 528, rehearing denied 131 Ind. 417, 31 N. E. 453; Pierson v. Republic Casualty Co., 200 Ind. 350, 160 N. E. 43; State ex rel. Felthoff v. Richards, 203 Ind. 637, 180 N. E. 596.”
In the case at bar, as in the Sims case, it is not the contention that the Circuit Court hearing the case does not have jurisdiction over that “class of cases” known *515as divorce actions. And, in the Sims case, the opinion written by Judge Crumpacker stated the following—
“The exercise of that jurisdiction, however, is contingent upon proof of the plaintiff’s residence in the manner provided by §3-1203, Burns’ 1946 Replacement. If there was a failure of such proof in the present case the question should have been raised in the trial court and not here for the first time.” (Emphasis ours.)
In the case of State ex rel. Johnson v. Reeves, Judge, etc. et al. (1955), 234 Ind. 225, 125 N. E. 2d 794, the Indiana Supreme Court stated—
“This court has held that jurisdiction embraces three essential elements: (1) jurisdiction of the subject-matter, (2) jurisdiction of the person, and (3) jurisdiction of the particular case. Ballman v. Duffecy (1952), 230 Ind. 220, 229, 102 N. E. 2d 646; Gilmour v. State (1952), 230 Ind. 454, 457, 104 N. E. 2d 127; State ex rel. Pub. Serv. Com. v. Marion C. Ct. (1952), 230 Ind. 277, 284, 100 N. E. 2d 888.”
Further in that case on page 229, the Supreme Court cited with approval the following true quotations—
“ ‘. . . it is well settled that the want of jurisdiction over the particular case then before the court, belonging to the general class of cases over which the court has jurisdiction may be waived by failure to make timely and specific objection. Daniels v. Bruce, supra [(1911), 176 Ind. 151, 95 N. E. 569], and cases therein cited.’
“Also, in Park Improvement Co. v. Review Board, etc. (1941), 109 Ind. App. 538, 545, 36 N. E. 2d 985, supra, it is said:
“ ‘An apparent exception to the rule that the jurisdiction of the court over the subject-matter may be raised at any time is that where the court has jurisdiction over the subject-matter, but its jurisdiction over the particular proceeding is involved, the question must be raised at *516the earliest opportunity or it is waived. Tucker v. Sellers (1891), 130 Ind. 514, 30 N. E. 531.’
“See also: Plew v. Jones (1905), 165 Ind. 21, 25, 74 N. E. 618; Tucker, Treasurer v. Sellers (1892), 130 Ind. 514, 518, 30 N. E. 531, supra; Park Improvement Co. v. Review Board, etc. (1941), 109 Ind. App. 538, 545, 36 N. E. 2d 985, supra; Jefferson Pk. R. Corp. v. Kelley, Glover & Vale (1938), 105 Ind. App. 313, 324, 12 N. E. 2d 977, supra; Stoll, Exr. v. Rich, Exr. (1929), 88 Ind. App. 639, 641, 165 N. E. 67; 21 C. J. S., Courts, §109, p. 163, 166.”
In the ease at bar, there is nothing in the record to indicate that the appellant raised the question of jurisdiction over the particular case at the proper time in the trial court, and therefore by this failure to so challenge the jurisdiction of the particular case he has waived any question thereto. State ex rel. Johnson v. Reeves, Judge, etc. et al., supra, at page 231.
Even if the majority opinion’s holding that appellant could properly raise the question of jurisdiction over this particular case in this court for the first time would have been proper, I am nevertheless of the opinion that the appellee had sufficiently proven the necessary residence qualifications to have granted jurisdiction to the trial court over this particular case, and that the majority opinion has also erroneously decided adversely to appellee in this matter.
In this case at bar, the majority opinion has apparently erroneously resolved all inferences in favor of the appellant, contrary to all well established precedents of this Court. In reading the complete record and in resolving all inferences and deductions in favor of appellee, as we are obliged to do, it is apparent that there was no question concerning the fact that the court below had jurisdiction over the case because of the testimony of Mr. Prentice, attoney for appellee (plaintiff below), *517and also by the voluntary testimony of Mr. Homer Smith, attorney for appellant (defendant below), who both as an attorney and a recognized officer of the court, voluntarily testified as a resident witness to sufficient facts from which the trial judge could logically by a fair and reasonable inference conclude that the case was properly before the court for determination.
Reviewing again the proof of residence qualifications we have in the record Mr. Prentice, attorney for appellee (plaintiff below), testifying as follows, taken from the transcript at page 100, lines 23-27, and at page 101, lines 1-7:
“MR. PRENTICE: Your Honor, I would like to testify as a resident witness.
“THE COURT: All right.
“MR. PRENTICE: My name is Dixon Prentice. I am a resident householder of Clark County, Indiana, and head of a family. I have been personally acquainted with Mr. and Mrs. Bohannan, the parties to this suit, for approximately ten years, and I know they have been bonafide residents of Clark County, Indiana, continuously for more than one year immediately prior to the date this suit was filed.”
Immediately thereafter the transcript indicates on line 2, page 101, in the Bill of Exceptions, the following statement of Mr. Homer Smith, attorney of record for appellant (defendant below), to-wit:
“MR. HOMER SMITH: Your Honor, I will testify to the same facts. I have known the Bohannan family for a number of years prior to the date this suit was filed, and I know they lived in Clark County all of that time.”
Resolving the inferences in favor of the appellee, I am of the opinion that it is reasonable to consider the fact that both of these witnesses, who were lawyers, *518testifying' before the judge, are presumed to know and be familiar with the statutory requirements of residence. A reasonable inference drawn from this testimony of both lawyers in the trial below is that both witnesses knew of the statutory requirements and testified that the parties were qualified under such requirements. Mainly the appellant has now contended before this court that the testimony of his own lawyer, Smith, did not qualify him as a resident witness, in that he did not state in so many words and in clear and concise English that he was a resident householder of the state. I am of the opinion that here this testimony must be viewed in the light of all the testimony given. We have in this case a lawyer testifying and he opens his remarks with a statement to the court, “Your Honor, I will testify to the same facts,” he concludes his testimony by further stating, “I have known the Bohannan family for a number of years prior to the date this suit was filed, and I know they lived in Clark County all of that time.” From this I believe that any reasonable man could logically, by inference and deduction, conclude that the lawyer, Homer Smith, too is a resident householder of Clark County, Indiana, and the head of the family, and that he had been acquainted with the parties to the trial and knew that they were qualified to petition the court in a divorce action. To put any other interpretation upon his testimony, it would have to be concluded that he was merely corroborating that lawyer Prentice was a resident householder, etc. The record further shows that lawyer Prentice’s testimony was not disputed and he was not cross-examined. In fact, the record shows that the appellant, by his answer to the complaint of appellee, expressly admitted the material allegations of residence set out in appellee’s complaint. Thus, by such admission there was no *519necessity of proving the allegation, of residence, except insofar as it is mandated by the statute that residence shall be proven by two witnesses. It was obviously not going to be disputed, and it needed no corroboration, and if it did, such corroboration most certainly, in a hotly contested divorce action, would not have come voluntarily from his opposing counsel, lawyer Smith. The testimony of lawyer Smith and of lawyer Prentice, when viewed in the light of all of the evidence and of the circumstances of which the trial court could and should properly take judicial notice, discloses that they were both qualified residence witnesses and that the parties to the action were qualified to petition the Clark Circuit Court in a divorce action. Further, since the entire record discloses that the trial judge was the regular judge of the Clark Circuit Court before whom these proceedings were held, and since the applicable statute as pointed out in' the majority opinion, Burns’ Ind. St., §3-1203, recited in part “which bonafide residence shall be duly proven by such petitioner to the satisfaction of the court trying said petition by at least two witnesses each of whom shall be either a resident householder or the wife of a resident householder of this state,” it appears that the trial judge was satisfied by such testimony of the two opposing lawyers that the residence requirements set up by statute had been fully complied with, particularly in view of the fact that from the whole record of the trial there was no evidence introduced to the contrary from which the trial judge could have logically drawn any other conclusion. In the case of Wharton v. Wharton (1941), 218 Ind. 345, 349, 32 N. E. 2d 695, the Indiana Supreme Court stated—
“It was not necessary that the residence of the appellee or the qualification of the residence wit*520nesses, be shown by formal or express proof. The trial court might draw all proper inferences and presumptions from such testimony. Blauser v. Blauser (1909), 44 Ind. App. 117, 87 N. E. 152; Maxwell v. Maxwell, supra, [(1876), 53 Ind. 363]; McMurrey v. McMurrey (1936), 210 Ind. 595, 4 N. E. 2d 540.”
The majority opinion has recited a long list of cases as authorities for the following general principles of statutory interpretation in which we concur and which we again reiterate by quoting from the majority opinion as follows:
“We are bound by the general rule of law that a statute must be reasonably and fairly interpreted so as to give it efficient operation, and to give effect if possible to the expressed intent of the legislature. It should not be wantonly narrowed, limited or emasculated and rendered ineffective, absurd or nugatory. If possible it should be allowed to perform its intended mission as shown by the existing evils intended to be remedied. Blazer v. Waring (1911), 176 Ind. 585, 590, 95 N. E. 257, 48 L. R. A. (N. S.) 834; Walters v. Bank of America (1937), 9 Cal. 2d 46, 52, 69 P. 2d 839, 110 A. L. R. 1259, 1264; DeTarr v. State (1906), 37 Ind. App. 323, 327, 76 N. E. 897; Perry Twp. v. Indianapolis Power & Light Co. (1946), 224 Ind. 59, 69, 64 N. E. 2d 296; Davis Coal Co. v. Polland (1902), 158 Ind. 607, 617, 62 N. E. 492; Smith v. Indianapolis St. R. Co. (1902), 158 Ind. 425, 427, 63 N. E. 849.”
After making such statements, it appears to me that the majority members of this court have then proceeded to go exactly to the contrary by trying to narrow, limit or emasculate and render ineffective, absurd or nugatory the obvious intent of the legislature in setting up the residence requirements in divorce proceedings, which was obviously to prohibit non-residents of this State, over whose marital status our courts can ac*521quire no jurisdiction, from obtaining fraudulent divorces. Wharton v. Wharton, supra; Prettyman v. Prettyman (1890), 125 Ind. 149, 25 N. E. 179.
By this dissent I do not especially condone proof of residence as was made in this case in such a “sloppy” manner. Nevertheless, there is no legal reason that attorneys representing litigants in a divorce action can not testify as witnesses to prove residence qualifications provided the attorneys meet the necessary residence and householder qualifications as set up by statute.
For the reasons stated above, I am of the opinion that appellant has failed in his burden to prove that the decision of the trial court is not sustained by sufficient evidence and is contrary to law, and that consequently the judgment should be affirmed.
Myers and Smith, JJ., concur in dissent.
Note. — Reported in 167 N. E. 2d 717. Transfer denied Achor, C. J., in which Jackson, J., dissents.