
    INEFFECTIVE EFFORT TO BRING AN ACTION FOR. DIVORCE.
    Common Pleas Court of Greene County.
    Ella Ewing v. Henry Ewing.
    
    Decided, September 22, 1913.
    
      Divorce — Deposit for Costs a Prerequisite to the Filing of a Petition.
    
    Inasmuch, as an action for divorce is a purely statutory proceeding, compliance must be bad (in the absence of an affidavit of inability so to do) with tbe provision of Section 11981, as to prepayment of an amount sufficient to cover tbe costs, and where such payment is omitted at tbe time of tbe filing of a paper intended as a petition ' for divorce, tbe subsequent malting of a deposit for costs does not give validity to said paper, and a motion lies to strike it from tbe files.
    
      Marcus Shoup, for plaintiff.
    
      T. E. Scroggy, contra.
    
      
      
         Affirmed by the Court of Appeals, October Term, 1913.
    
   Kyle, J.

On the 2d day of July, 1913, Ella Ewing filed her petition for divorce against Henry Ewing. Henry Ewing, by his counsel on July 9th, filed a motion to strike that paper from the files be-' cause there had been no deposit for costs made. Upon the next day, the 10th, the-plaintiff’s attorney deposited with the clerk five dollars, the amount fixed-by the clerk.

The claim of the plaintiff is that to sustain this motion would prejudice the plaintiff upon her constitutional right that ‘ ‘ all the courts shall be open and every person, for an injury done him in his land, goods, person or reputation, shall have remedy by due course of law; and justice administered without denial or delay. ’ ’ Constitution, Article I, Section 16.

The proceedings for divorce are entirely statutory.' A man has no constitutional right for divorce. The list of rights which is given under the Constitution does not include the right for divorce. The Legislature had the right to throw around proceedings for divorce any such limitations or conditions as they saw fit, and one of them was:

“Section 11981. 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 of 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 eases. ’ ’

The clerk had no authority to receive or file that petition without a compliance with Section 11981. It was an unauthorized act. His act could have no validity or effect in law. No action was commenced by the filing and docketing of the plaintiff’s petition. The paper filed without the deposit of the costs did not become a legitimate pleading. Moorman v. Schmidt, 69 O. S., 337.

What effect did the payment of that five dollars, or the costs, one week later have?

It could not operate to vitalize that petition because that must precede the filing of the petition. He can not receive it until the plaintiff deposits the amount as fixed by law. Until that is done there can be no action commenced. If there had been no action commenced such payment could not have the effect of vitalizing the case, because the summons had issued on a paper before this time that was not a petition in law.

The act of the clerk in filing the petition without a deposit or security for costs, as provided by Section 11980, was unauthorized and void. Sebeirt v. Switzer, 35 O. S., page 665.

Therefore, my opinion is that this motion should be sustained and the paper — because it is not a petition under the divorce proceedings — should be stricken from the files. An order may be taken accordingly.  