
    Purdy v. Purdy.
    
      (Decided May 19, 1931.)
    
      Messrs. Gary, Estill <& Kuhn, for plaintiff in error.
    
      Messrs. Schuler, Garver & Badger, for defendant in error.
   Lemert, J.

This is an error proceeding and comes into this court from the court of common pleas of Holmes county.

On November 14, 1930, the plaintiff, Della Purdy, filed her petition for divorce and injunction against the defendant, Alfred B. Purdy. In the petition the plaintiff states that she is without funds for her support and the prosecution of this action. The defendant was duly served with summons and a copy of the petition. On November 24, 1930, the plaintiff filed her motion for temporary alimony, and it seems from the record that an amount was thereafter agreed upon. On November 25, 1930, defendant filed an answer. On December 23, 1930, an affidavit of prejudice was filed against the resident common pleas judge of Holmes county, Ohio. On November 24, 1930, defendant filed his motion for the custody of the minor children. On February 11, 1931, the defendant filed his motion to have the petition dismissed, on the ground that no security for costs had been deposited with the clerk. On February 26, 1931, the court of common pleas sustained the motion and dismissed plaintiff’s petition by reason of noncompliance with Section 11981, General Code.

For a proper determination of this case it is necessary to note the provisions of .Section 11981, General Code, which are as follows: “No clerk of a court of common pleas shall receive or file a petition for divorce or alimony until the party named as plaintiff therein, or some one on his or her behalf, makes prepayment or deposit with the clerk of such an amount as will cover the costs- likely to accrue in the action exclusive of attorney fee, or gives such security for the costs as in the judgment of the clerk is satisfactory; but when a plaintiff makes affidavit of inability either to prepay or give security for costs, the clerk shall receive and file the petition. Such affidavit shall be filed with it, and treated as are similar papers in such cases. ’ ’

For a proper determination of this case we believe it necessary to analyze the above statute, which seems to be plain, clear and unambiguous, and to determine for what purpose it was enacted. We find that this section as it now stands was passed by the Legislature of Ohio in 1906, which was an amendment to a former statute passed by the Legislature in 1902. At the very outset of this opinion we find and believe that the above statute has to do and deals with not only the plaintiff and defendant in a divorce case, but contains also a provision which seems to indicate that it was the intent of the Legislature to take care of and protect in such proceedings a third party, to wit, the county wherein an action for divorce is filed.

The above section provides that before a clerk of the common pleas court can either receive or file a petition for divorce or alimony, certain plain, specific and well-defined things must be done: First, there must be a prepayment or deposit with the clerk of such an amount as will cover the costs likely to accrue in the action, or such security given for the costs as in the judgment of the clerk is satisfactory. Second, the statute makes further provision that “when a plaintiff makes affidavit of inability either to prepay or give security for costs,” the clerk shall receive the petition. It will be noted that this statute does not make any provision whatever for such language as we find incorporated in the plaintiff’s petition in this case, that “she is without funds for her support and prosecution of this action”

The following language in the section under discussion, “such affidavit shall be filed with it, and treated as are similar papers in such cases,” should not be treated lightly, but should be given the weight and respect that we believe the Legislature intended it to have. Our construction of the statute is that the affidavit above referred to must be made separate and apart from the petition, but in the instant case no affidavit such as the statute provides for is even made, nor is it a part of the petition. A plaintiff may have no funds and still have plenty of property, or a plaintiff may have no property and still be able to give security for costs.

Section 11356, General Code, provides for the verifying of a pleading and specifies before whom a pleading may be sworn to, that is, before any person authorized to administer oaths, whether an attorney in the case or not, but the affidavit provided for in Section 11981, General Code, is not a pleading and cannot be made a part of the petition, as was attempted to be done in this case, and thus avoid the responsibilities and duties devolving upon a plaintiff in such action as provided for in Section 11981, General Code. The petition of plaintiff in this case was verified by one of the attorneys for plaintiff. While a pleading such as mentioned in Section 11356, General Code, might be sworn to before one of the attorneys for the plaintiff, the affidavit provided for in Section 11981, General Code, cannot be sworn to before the attorney for the plaintiff.

An action such as the instant case for divorce is purely a statutory action and proceeding. It is not a proceeding under common law, or in equity. A divorce proceeding is purely a creature of statute. It therefore being purely a statutory proceeding, the statute must be strictly construed and complied with. We find that the courts of this and other jurisdictions have passed upon this matter in divorce cases, particularly as to prepayment of an amount sufficient to cover the costs, and where such payment is omitted at the time of the filing of a paper intended as a petition for divorce, subsequent making of a deposit for costs does not give validity to the paper and a motion lies to strike it from the files. We believe that the clerk of the common pleas court in the instant case had no authority to receive or file the petition without a compliance with Section 11981, General Code. It was an unauthorized act. Such act could have no validity or effect in law. No action for divorce was legally commenced by the receiving, filing and docketing of the plaintiff’s petition, or, in other words, the pleading filed, which might be termed “petition,” without a deposit or security for costs, did not become a legitimate pleading. Moorman v. Schmidt, 69 Ohio St., 328, 337, 69 N. E., 617.

“The act of the clerk in filing the petition without a deposit or security for costs, as provided by Section 11981, was unauthorized and void.” Ewing v. Ewing, 15 N. P. (N. S.), 73, 24 O. D. (N. P.), 360. See, also, Seibert v. Switzer, 35 Ohio St., 661, 665.

We desire to call attention to the last two lines of Section 11981, General Code, which are as follows: “Such affidavit shall be filed with it, and treated as are similar papers in such cases. ’ ’ The antecedent of the pronoun “it” is, of course, “petition.” If the affidavit is to be filed with the petition, it is evident that the statute contemplates a separate affidavit and not a statement incorporated in the petition. It seems to us that this was the intent of the Legislature in using the language used in Section 11981, General Code.

An “affidavit” is defined in Section 11522, General Code, as follows: “An affidavit is a written declaration under oath, made without notice to the adverse party.”

Section 11303, General Code, states as follows:

“The only pleadings in civil actions are:
“1. Petition;
“2. Demurrer to petition;
“3. Answer, which if it demands affirmative relief may be styled a cross-petition;
“4. Demurrer to answer;
“5. Reply;
“6. Demurrer to reply.”

Consequently, an affidavit is not a pleading.

Section 11305, General Code, provides what a petition must contain; that is:

“1. A statement of facts constituting a cause of action in ordinary and concise language;
“2. A demand for the relief to which the plaintiff claims to be entitled. If the recovery of money is demanded, the amount shall be stated; and if interest is claimed, the time for which interest is to be computed shall be stated.”

In addition, all pleadings must contain the name of the court, the county in which the action is brought, and the name of the parties, followed by the name of the pleading.

Thus it appears a'likely conclusion that the facts which are required to be set forth in a poverty affidavit under Section 11981 constitute no part of the petition. They would be irrelevant matters in the petition and subject to be stricken out on motion. We know of no rule which will allow matters in the petition other than those which are provided in Section 11305. Thus it seems from the language and other pleadings that as a matter of principle a poverty affidavit was not intended to he incorporated within a petition.

It will be noted from a careful examination and consideration of Section 11981 that the plaintiff may do one of two things:

1. The plaintiff, or some one for him or her, may make a prepayment or deposit with the clerk.

2. The plaintiff, in lieu of that, may give such security for costs as is satisfactory to the clerk.

If neither prepayment is made nor security given, then the plaintiff may file the affidavit referred to, but this affidavit must state “the inability either to prepay or give security for costs.” This includes two things, that is: (1) Inability to prepay. (2) The inability to give security.

Now, referring again to the language in the petition, the plaintiff simply states that she is without funds for the prosecution of this action. She might be without funds to pay her attorney, and yet have funds to prepay the costs. She might not have funds for the prosecution of the action, but she might have property which she could pledge as security for the costs; or she might have neither funds nor property and still have friends who might be willing to go security for her costs. It is plainly to be seen that the allegations in the petition are not sufficient to comply with the requirements of Section 11981, General Code.

It is contended in this case that the defendant by filing an answer and other pleadings in this case has waived the right to file a motion to dismiss. It is a general rule of pleading, which requires no citation of authorities, that upon failure to file a motion to a defect of form, or to relevancy, or to surplus-age in a pleading, the defendant is estopped from later filing a motion which might have been raised prior to the filing of the answer, etc. However, in the instant case, the situation is different because of the failure to comply with Section 11981 as to the prepayment of costs, or to give security therefor, or file a proper poverty affidavit.

In commenting upon the provisions of this section in 14 Ohio Jurisprudence, 455, we find the following language: ‘ ‘ The provisions of this statute are mandatory and jurisdictional, and the failure to comply therewith invalidates the proceeding. Furthermore, the deposit or security must precede the filing of the petition, and the clerk’s receiving a deposit subsequent to the filing of the petition will not operate to vitalize a proceeding which is invalid by reason of non-compliance with the provisions of the statute.”

The court in Moorman v. Schmidt, 69 Ohio St., 328, at page 337, 69 N. E., 617, held that the act of the clerk in receiving, filing and docketing the petition, as was done in the instant case, was unauthorized and void, and that no action was ever commenced. Consequently, if the act of the clerk is unauthorized and void, and no action was begun by filing the petition, and it cannot be vitalized or cured by the subsequent filing of a deposit or an affidavit, then it remains that there is nothing for the court to act upon if the action has never really been legally commenced.

In the instant case the matter of jurisdiction goes to the subject-matter, and the Supreme Court of this state, in Alter v. Shearwood, 114 Ohio St., 560, 151 N. E., 667, says: “A proceeding may be dismissed by tbe court at any stage of tbe case wherein want of jurisdiction of the subject-matter appears.”

It therefore follows that the action of the court of common pleas in dismissing the petition of plaintiff and striking the same from the files was fully warranted, and we find no error therein. It further follows that the judgment of the common pleas court will be and the same is hereby affirmed. It is further the judgment of the court that both parties to the proceeding pay their own costs.

Judgment affirmed.

Sherick and Montgomery, JJ., concur.  