24 Haw. 29 | Haw. | 1917
OPINION, OP THE COURT BY
The libellant, appellee here, filed in the circuit court of the first circuit on November 8, 1916, a libel for divorce from her husband, the libeilee, appellant here, upon the sole ground of desertion alleged to have occurred on the 7th day of November, 1911. In said libel it is alleged that the “libeilee is without the Territory of Hawaii, the exact whereabouts of which to your libellant is unknown, but that libellant is informed and believes, and upon information and belief avers the fact to be that said libeilee is detailed on the U. S. S. ‘Yorktown,’ cruising near the southern coast of the State of California; that all mail matter for persons so detailed is directed care of and for: warded to the addressee by the postmaster at San Francisco, California, to whom the exact whereabouts of said Yorktown is from time to time communicated.” Thereupon the circuit judge made an order .directing that copies of the libel, summons and order for service be made upon the libeilee by mailing in a registered envelope sealed and properly stamped to the libeilee on the U. S. S. Yorktown in care of the postmaster of the city and county of San Francisco, State of California, said registered envelope to contain thereon the words: “Return receipt demanded” “Deliver only to addressee,” and the address of the clerk as sender, and said order fixed Thursday, February 13,
The general rule is that applications to. open defaults are addressed to the sound discretion of the trial court and such discretion will not be disturbed except in case of clear abuse thereof. This is the rule in ordinary actions Avhere the only parties interested are the parties to the litigation. Query: Should the same rule apply to divorce .cases?
The granting of divorces is opposed to the interests of
In Mulkey v. Mulkey, 100 Cal. 91, it is said: “An affidavit of merits on grounds of public policy has no place in a proceeding of this character. (McBlain v. McBlain, 77 Cal. 507.) The motion should have been heard and determined alone upon the grounds stated in the notice and affidavits. The facts stated in the affidavit of defendant show either collusion between the parties, or that the defendant was grossly misled and deceived by her husband as to the ground of proposed action, he having informed her, as she states, that it would be brought on the ground of desertion. In either case the court should have been prompt to set aside the judgment and allow the defendant to answer, so that the cause might be heard and determined on its merits. The judgment is a harsh
To permit a default to be opened and allow a defense to be interposed which is not meritorious should not be vigorously opposed in divorce cases owing to the effect that divorce has upon the parties and their offspring. Hamilton v. Hamilton, 51 N. Y. S. 365. In Bostwick v. Bostwick, 73 Tex. 182, a divorce case was called out of its order, tried and decided. An application to reopen and permit the defendant to defend was denied by the trial court and reversed by the supreme court on the ground that although defendant had not answered she was entitled to defend and it was error to call the case out of its regular order on the docket, the court enunciating the rule that “The law encourages defenses of divorce suits.” In Simpkins v. Simpkins, 14 Mont. 386, suit for divorce was instituted in Montana. The defendant, who lived at La Crosse, Wisconsin, there employed an attorney to represent her. Her Wisconsin attorney secured the services of an attorney in Montana to assist in the defense and the
It is argued on behalf of the libellant that the libellee Avas negligent in that he waited from the time that he was served at San Diego, Cal., which was on March 23, 1917, until just before the time fixed for the hearing before notifying his attorney in Honolulu to appear for him. But in considering this question we must keep in mind the facts that libellee was then a naval officer in the service of the United States on duty at sea in time of war, and that he was not in the same position as an ordinary civilian so far as time and opportunity to attend to personal matters
The order denying to grant the motion to open the default and set aside the decree is reversed and the cause remanded for further proceedings consistent with the views herein expressed.