{
  "id": 1478644,
  "name": "Wilder v. Wilder",
  "name_abbreviation": "Wilder v. Wilder",
  "decision_date": "1945-04-16",
  "docket_number": "4-7608",
  "first_page": "521",
  "last_page": "523",
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    "id": 8808,
    "name": "Arkansas Supreme Court"
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      "cite": "207 Ark. 414",
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  "last_updated": "2023-07-14T15:02:19.909104+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Wilder v. Wilder."
    ],
    "opinions": [
      {
        "text": "McHaney, J.\nOn February 21, 1940, appellant was granted a decree of divorce from Ms wife, Mary Glover Wilder, on tbe ground they had lived separate and apart for three consecutive years without cohabitation. Section 4381 of Pope\u2019s Digest, subsection seven. On November 16, 1943, appellee, by A. G. Glover, her nephew and next friend, brought this action against appellant to cancel and set aside the divorce decree of February 21, 1940, on the ground, among others, that no process was ever served on her in the divorce action and that she had no notice of said suit against her. The jurisdiction of the court was questioned and the trial court dismissed the action on jurisdictional grounds. This court reversed. Wilder v. Wilder, 207 Ark. 414, 181 S. W. 2d 17.\nOn remand the trial court held that the defendant, appellee here, had not been served with process and set aside and cancelled the decree of February 21, 1940. This appeal followed.\nIt is undisputed that appellee is now and has been continuously since 1925 an inmate of the North Carolina State Hospital for the Insane at Raleigh, North Carolina. There was no service of summons upon her as provided by \u00a7 1371 of Pope\u2019s Digest, which is \u201cWhere the defendant is a person judicially found to be of unsound mind, the service must be upon him and his guardian; if there is no guardian, upon his wife, or the person having the care of him, or with whom he lives, or the keeper of the asylum in which he may be confined.\u201d In this case the service \u201cmust\u201d have been upon her\u2019and the keeper of the asylum,- which was not done. The return of the officer serving the process is that \u201cI served a true copy of the attached summons and certified copy of the complaint on the defendant, Mary G. Wilder\u2014by delivering a true copy\u2014to Dr. J. W. Ashley, Supt. for Mary G. Wilder, and a true copy\u2014[to] Dr. J. W. Ashley 'Superintendent of the State Hospital for the Insane at Raleigh, in which institution said defendant is confined\u2014. \u201d There was, therefore, no summons served on Mary G. Wilder as the statute directs. So far as we have been able to find this court has never construed said \u00a7 1371, but we have, in a number of cases, construed \u00a7 1370, relating to service upon infants and which section is quite similar to or substantially the same as \u00a7 1371. It is the rule in this court that there can be no valid decree against an infant without personal service on the infant, even though he appears and defends by his guardian. Haley et al. v. Taylor, 39 Ark. 104. Nor can an attorney enter an infant\u2019s appearance and have a guardian ad litem appointed for him, as there can be no appointment of a guardian ad litem until after personal service. Evans, Guardian, v. Davies, Admr., 39 Ark. 235; \u00a7 1330, Pope\u2019s Digest. The same holds true as to defense by insane persons. Section 1334, Pope\u2019s Digest. See, also, Cannon v. Moore, 83 Ark. 196, 104 S. W. 139; Baker v. Boyd, 196 Ark. 563, 119 S. W. 2d 524; Hare v. Ft. Smith & Western Railway Co., 104 Ark. 187, 148 S. W. 1038. Appellee in her motion to set aside'the decree, alleged a meritorious defense to the divorce action in that appellant had no ground of divorce under the three-year separation statute.\nThe record in this case does not show any order of the court appointing a guardian ad litem, although the complaint prayed such appointment and an answer was filed by C. D. Harmon, purporting to be the duly appointed guardian ad litem. If we assume that this is sufficient to show the appointment by the court, still there was no personal service on appellee, and there could be no valid appointment until after personal service. The decree of divorce of February 21, 1940, was, therefore, .erroneous and would have been reversed if it had been appealed to this court. This is a direct attack on said decree brought under the authority of the fifth subdivision of \u00a7 8246 of Pope\u2019s Digest.\nThe court correctly set aside the decree for want of service and its judgment is accordingly affirmed.",
        "type": "majority",
        "author": "McHaney, J."
      }
    ],
    "attorneys": [
      "Wootton & Land and E. J. Wellons, for appellant,",
      "Murphy $ Wood, for appellee."
    ],
    "corrections": "",
    "head_matter": "Wilder v. Wilder.\n4-7608\n186 S. W. 2d 933\nOpinion delivered April 16, 1945.\nWootton & Land and E. J. Wellons, for appellant,\nMurphy $ Wood, for appellee."
  },
  "file_name": "0521-01",
  "first_page_order": 539,
  "last_page_order": 541
}