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Griffith v. Griffith

31 Del. 1 Court Superior Court for New Castle County, Decision date 1919-11-17 Docket Alias Summons No. 46 English

Delivered by Boyce, J.,

Contents

Majority

p. 1
Rebecca R. Griffith vs. William A. Griffith

Headnote

1. Divorce — Statutes as to Process Strictly Construed.
Provisions of Divorce Act (Rev. Code 1915, §§ 3004-3032 conferring jurisdiction upon the Superior Court in actions for divorce, including the character of the process prescribed and the methods of its service, should be strictly construed and rigidly enforced for the reason that they are matters essential to jurisdiction.
2. Time — Publication of Alias Summons for “One Month.”
“One month,” in the Divorce Act (Rev. Code 1915, §§ 3004-3032), requiring publication of an alias summons for one month, means a calendar and not a lunar month, and means a month ending on the day in the next succeeding month corresponding to the day in the preceding month on which the first publication was made, except where the succeeding month has not so many days as the date on which the publication was made in the preceding month, in which case the month expires on the last day of the succeeding month, in view of Rev. Code 1915, §§ 1, 3013.
(November 17, 1919)
Boyce and Rice, J. J., sitting.
Edmund. S. Hellings for plaintiff.
Superior Court for New Castle County,
September Term, 1919.
Alias Summons No. 46,
November Term, 1919.
p. 2
Action by Rebecca R. Griffith against William A. Griffith for divorce on the ground of extreme cruelty. Petition dismissed for the reason that the alias summons had not been published for one month.

delivering the opinion.

[1] Jurisdiction of the Superior Court in actions for divorce is conferred by chapter 86, Rev. Code 1915, and is acquired in the manner prescribed by the statute. It has been held by this court that the provisions of the statute, including the character of the process prescribed and the methods of its service, should be strictly construed and rigidly enforced for the reason that they are matters essential to jurisdiction. Morris v. Morris, 2 Boyce 583 , 83 Atl. 934 .

The summons issued in this case returnable to the September term last could not be served personally upon the defendant and the case was continued to this, the succeeding term, for an alias summons. Section 3013 of the Code provides:

“When the defendant cannot be served personally within this state, * * * an alias summons shall issue to the second term next after issuing the original writ, which the Sheriff shall publish for one month in such newspapers of the county, one or more, as he may judge best for giving the defendant notice. * * *”

The first publication of the alias summons in this case was made on the 4th day of October, and the present term of court, it being the second term after issuing the original writ, began on the 3rd day of November. The question is, was the alias summons published for one month as required by the statute? It is not a matter of days, but the meaning of “one month” which is to be considered.

[2] Section 1 of the Code relative to rules to be observed in the construction of statutes, provides:

“The word ‘month’ shall be construed to mean a calendar month, unless otherwise expressed. * * *”

So that “one monthy,” in the Divorce Act means a calendar and not a lunar month. A calendar month means a month as

p. 3
designated in the calendar, without regard to the number of days it may contain.

As applied to the publication made in this case, “one month” means a month ending on the day in the next succeeding month corresponding to the day in the preceding month on which the first publication was made. Nothing less meets the computation by a calendar month, unless it be that the succeeding month has not so many days as the day on which the publication was made, in the preceding month, then the rule appears to be that the month expires on the last day of the succeeding month. Subject to this exception, computation by calendar month excludes one day. Both days are never included. Daley v. Anderson, 7 Wyo. 1 , 48 Pac. 839 , 75 Am. St. Rep. 870 ; 38 Cyc. 312, IV.

The petition is dismissed, without prejudice.

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