199 P. 385 | Or. | 1921
The question to he decided here is: “Did the Circuit Court have jurisdiction of the subject matter when it made the order vacating the decree annulling the marriage contract existing between the plaintiff and defendant?” If so, the order is not appealable. If the court was without jurisdiction, the order is void and by the uniform ruling of the many precedents by this court such an order is appealable.
The defendant based her motion upon Section 103, Or. L., providing that:
“The court may * * in its discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done after the time limited by this Code, or by an order enlarge such time; and may also, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect.”
In the case of Bailey v. Taaffe, 29 Cal. 422, cited in a valuable note in 58 Am. Dec. 393, 394, it was said:
_ “The discretion intended, however, is not a capricious or arbitrary discretion but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion to be exercised ex gratia, but a legal discretion to be exercised in conformity to the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. In a plain case this discretion has no office to perform, and its exercise is. limited to doubtful cases where an impartial mind hesitates. If it be doubted whether the excuse offered is sufficient or not, or whether the defense set up is with or without merit, in foro legis, when examined under those rules of law by which judges are guided to a conclusion, the judgment of the court below will not be disturbed. If, on the contrary, we are satisfied beyond a reasonable doubt that the court below has come to an erroneous conclusion, the party complaining of the error is * * entitled to a reversal * *
“It is not sufficient for the applicant to show a case within the statute of relief and a good defense on the merits. He must also show proper diligence in prosecuting his remedy.
“Where it appears that he has been guilty of laches the application will be denied, as a negligent delay*177 after knowledge of the facts operates as a waiver of the irregularities.
“The rule requiring diligence in applying for relief obtains without distinction at law and in equity.
“It does not follow that a party shows due diligence because he makes an application before the expiration of the time named in the statute. The applicant must show even then that he acted promptly in seeking his remedy.
“Where the rights of third parties may be infringed, unusual diligence will be required.” 6 Ency. PL & Pr. 189-192.
To similar effect is 1 Black, Judgments, 313; 15 Stand. Proced. 213, 214.
It was said by this court in the ease of Coast Land Co. v. Oregon Col. Co., 44 Or. 483, 490 (75 Pac. 884):
“It is the duty of a party against whom a judgment has been wrongfully rendered to exercise reasonable diligence, after knowledge thereof, in procuring its vacation, and his inexcusable laches and delay will preclude him from obtaining the relief sought. In such case the party making the application is required to act in good faith and with reasonable diligence. If he has knowingly acquiesced in the judgment, or been guilty of unreasonable delay in seeking his i-emedy, relief will be denied him.”
It is said by a text-writer that:
“Aside from legislation, the courts will hear motions to vacate divorce judgments on the same grounds and conditions as any other judgments, except perhaps that they proceed with greater caution and with more anxious care for the intervening rights of strangers. ’ ’ 1 Black, Judgments, § 320.
A great authority on the law of marriage and divorce has written that:
“There are excellent reasons why judgments in matrimonial causes, whether of nullity or divorce, should be even more stable, certainly not less, than in others, and so our courts hold. The matrimonial status of the parties draws with and after it so many collateral rights and interests of third persons, that uncertainty and fluctuation in it must be greatly detrimental to the public. And particularly to an innocent person who has contracted the marriage on faith of the decree of the court, the calamity of having the decree reversed and the marriage made void is past estimation.” 2 Bishop, Mar. & Div., § 1533.
To like effect is Parish v. Parish, 9 Ohio St. 537 (75 Am. Dec. 482); 1 Black, Judgments, § 320, note 125. However, this court, in the case of Evans v. Evans, 60 Or. 195 (118 Pac. 177), upheld an order setting
¥e gather from the record that the plaintiff in this case has remarried.
“The test of the jurisdiction of the court to grant relief is not whether good cause for granting the relief exists, but whether the tribunal assuming to act had power to enter upon the inquiry in the particular case or grant the relief for any cause, and this must be sought for in the general nature of the powers of the court or the general laws defining its jurisdiction. It does not depend upon whether its conclusion in the course of it is right or wrong, nor whether its*180 methods were regular. * * The jurisdiction of the subject matter of any controversy in any court' must be determined in the first instance by the allegations in the complaint or petition, as the case may be, made in good faith, and does not depend upon the existence of a sustainable cause of action, or by the evidence subsequently adduced # # . Jurisdiction is the power to consider and decide one way or the other, as the law may require.” 17 Stand. Proced. 658, 659, 660.
The court had jurisdiction of the parties and the subject matter of the motion. It was empowered by law to enter upon the inquiry. It had a right to decide the matter heard and considered. Its action in making the order was not void, hence not appealable, even if erroneous.
The right of appeal is limited by law, and the cases in which' appeals may be taken, and the methods of procedure therein, are such only as the law provides: Clay v. Clay, 56 Or. 538, 541 (108 Pac. 119, 109 Pac. 129); State v. Security Sevings Co., 28 Or. 410, 417 (13 Pac. 162); School District v. Irwin, 31 Or. 131, 136 (56 Pac. 413); Kadderly v. Portland, 11 Or. 118 (74 Pac. 710, 75 Pac. 222); Hansen v. Robbins, 80 Or. 659 (157 Pac. 1112, 158 Pac. 103); In re Waters of Chewaucan River, 89 Or. 659 (171 Pac. 102, 175 Pac. 121); Smith Securities Co. v. Multnomah County, 98 Or. 438 (192 Pac. 651, 194 Pac. 428).
“A judgment or decree may be reviewed as prescribed in this chapter, and not otherwise. An order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein, * * or a final order affecting a substantial right, and made in a proceeding after judgment or decree, or an order setting aside a judgment and granting a new trial, for the purpose of*181 being reviewed, shall be deemed a judgment or decree.” Section 548, Or. L.
As succinctly stated in Bowman v. Holman, 48 Or. 351 (86 Pac. 792):
‘ ‘ The statute provides that an appeal may be taken from a ‘final order affecting a substantial right’ made after judgment or decree. The order in question is not of that character. It is not a final order, but merely vacated the former- judgment for the purpose of a trial upon the merits of the original action. It was within the power of the court to make, and is therefore not appealable: Deering v. Quivey, 26 Or. 556 (38 Pac. 710); Henrichsen v. Smith, 29 Or. 475 (42 Pac. 486, 44 Pac. 496); Hume v. Bowie, 148 U. S. 245 (37 L. Ed. 438, 13 Sup. Ct. Rep. 582).”
We are controlled by the law of this state governing appeals. The statute, as construed, does not authorize the court to pass upon the merits of the appeal in this proceeding. The action of the court in the case at bar, in setting aside its former judgment and permitting the defendant to answer, may be reviewed upon appeal from the final decree, and not otherwise: Van Voorhies v. Taylor, 24 Or. 247 (33 Pac. 380); State v. Portland General Electric Co., 52 Or. 502, 513 (95 Pac. 722, 98 Pac. 160); Clay v. Clay, 56 Or. 538, 542 (108 Pac. 119, 109 Pac. 129); Taylor v. Taylor, 61 Or. 257 (121 Pac. 431, 964); Flynn v. Davidson, 80 Or. 502 (155 Pac. 197, 157 Pac. 788).
The motion to dismiss is allowed. Allowed.