*1 argued April 1; Motion dismiss denied merits Pendleton October reversed November
COOK COOK (111 (2d) (2d) 1070) 118 P. *2 Justice,
Before Chief Bailey, Lusk, Kelly, and Bossman, Associate Justices. Band *3 and H. H. Winkle, I. H. Van General, Attorney for DeArmond, Bend, appellant. of for Stadter, E. O. Bend, respondent. of 1923, of day December, the 21st C. J. KELLY, On herein complaint named filed above the on thе of his wife part desertion divorce charging for named defendant. above the served publication. Summons di- February, 1924, a decree of of day the 15th On July 16, Jack 1939, plaintiff, On was rendered. vorce died. Cook, named filed above defendant 1940, July
On summons, of the service order quashing an a motion and decree entered оf default order aside setting on the 15th day February, allowing defendant to and defend in appear this suit. the 24th
On day 1940, the State of July, Oregon filed a petition to be permitted intervene herein and file its of intervention. complaint
An order was thereafter made the State permitting to file Oregon its intervention, which, in effect, sought said decree of divorce for uphold the reason that died herein intestate without heirs, which, unless said decree of divorce should be set aside, estate, rendered his alleged intervener’s to be of the complaint, value of $10,000, subject to escheat to the Land Board. State
After the trial hearing testimоny, court entered an order vacating and aside said setting decree of divorce and granting permission to file an answer herein.
From this last named order, State Oregon has appealed.
Defendant moves to dismiss said ground order vacating decree of divorce and permitting defendant to answer is not an appealable order.
The authorities hold generаlly that where the con sequences of the divorce are such as affect the prop erty rights of the to the suit the death parties of one or both party does not affect parties the right of the unsuccessful or his or her party, representative institute vacation proceedings.
The doctrine is well settled that an order merely aside its former setting judgment permitting the *4 to answer bemay reviewed upon appeal from the final decree and not otherwise. Carmichael v.
478 and authori P. 385, 199 172, 181, 101
Carmichael, Or. ties there cited. applicable the instant case rule is not
This only purpose sole the reason that defendаnt’s vacating securing of divorce order decree the. by property owned for her the herein was to secure plaintiff at his death. Oregon, by in interven- its
The State of validity uphold' decree of of the tion, seeks to subject thereby rendering property such divorce, Board. Land escheat to the State finаlly by deter- the trial court The order made only presented herein, issue mined the issue, namely, is the hand, defendant on the one whether, by plaintiff property at the time of owned owner decree of divorce hand, on the other death, or, property, right claim such her divested defendant Oregon the State of hеirs, died without if and, property. may escheated to it as be entitled by such an issue methods which three There are presented the method courts. One is to the has been party by unsuccessful motion herein followed by a writ another is divorce; decree to vacate the a writ coram proceeding in the nаture of aor of error by independent suit. an method is third and the nobis; last of these eases wherein has heard court This procedure followed: v. Sturm methods three (2d) v. Sedlak Cooper, 28 145 al., et Or. P. 452. 540, 13 14 Or. Sedlak, propriety agreement to the as are not courts The following cases hold pursued The herein. the course independent presented be should the issue 1 Hun. 267, How. Watson, v. Watson or action. suit Rep. N. Y. Misc. S. Groh, 240; Groh Pr.
479
Morey Morey,
Y. S.
527,
161;
164 Misc.
299 N.
v.
985;
N.
831.
Mich.
9 W.
Zoellner,
511,
Zoellner v.
46
in the
herein has been followed
The course taken
following
22
23;
Pa. Co. Ct.
Gambe,
cases:
v.
Gambe
Fidelity
Appeal,
Pa.
sc. under
242,
Insurance
93
Co.,
v.
6
N. C.
Peterson,
449;
title Peterson v.
W.
Smith
Boyd’s Aрpeal,
241;
38 Pa.
Phila.
sc.
Smith,
489,
3
Bay
Bay,
N. E.
98
417,
109;
v.
et
85
St.
al.,
Ohio
P. 923.
Vincent v.
30 Idaho
Black,
636, 166
(Tenn.)
3
Sims,
544;
v.
Coldw.
Contra: Owens
Am. Dec.
534,
482;
Parish v.
9 Ohio St.
75
Parish,
Dwyer
P.
5 Ann.
459,
v.
40
82
Nolan,
746,
Wash.
Cas.
(N. S.)
Rep.
111 Am.
551,
1 L. R. A.
St.
919.
890,
following
A
error
invoked in the
cases:
writ of
v.
et
7 Ill.
Israel v.
Moss,
al.,
72;
Arthur,
Wren
Admr.
6
Colo.
v.
85, 7
12,
5 Iowa 68 Rine v. 9 Ohio Rep. Rep. Dec. 9 Dec. 275, 104; Ohio v. Fritz Fritz, 6 9 Dec. N. P. Ohio 258, 274; Ohio Brown, et al. v. Ind. N. E. Rep. 116 18 9 Grove, 84, 387, Am. St. Victoria, Hill v. 180 Iowa 161 417, N. 823; W. 72; 128, v. 136 Iowa 113 N. Wood, Wood 492, W. 125 Am. 12 R. A. 223; St. L. Lawrence v. 891; Nelson, 113 N. 57 L. R. A. 277, 84, Iowa 85 W. 583; Leathers v. A. Me. 79 Ann. 96, 16, 108 Cas. Stewart, 1913B, 366. In instant made of case, criticism is intervener’s a;s appeal properly transcript on not certified.
480 to this criti- subject
The
is
transcript
testimony
cism. Nealan v.
493,
199;
193 P.
Ring,
490,
98 Or.
Little
Johnson v.
Johnson,
131 Or.
Munsell,
District
Or.
Applegate Improvement
Argued merits at Pendleton October reversed on the 18,1941 November On the Merits 1070) (118 (2d) Justice, Chief Before Belt, Kelly, Band, Associate Justices. Brand, Lusk Bailey, Court, County. Deschutes from Circuit Appeal Judge. E.T. J. Duefy, Maria against action Jack Cook Jane Divorce obtained, divorce was defendant A decree of Coоk. decree. Land set aside such The State filed a motion to file a permission complaint Board was granted Prom an order aside the decree setting intervention. Board Land appeals. the State divorce, of Beversed. DeArmond, Bend Hamilton (DeArmond,
E. E. for Bend, brief), on Goodrich, appellant. & for Bend, Stadter, respondent. E. O. an from an order This is J.
BELT, aside and a vacating decree of setting court circuit divorce to have been fraud. alleged procured through The decree of divorce obtained on February 16, was 1924. Service on defendant was had by publication summons. In with the order compliance publica- a tion, of the summons and were mailed copy to the defendant Maria Jane Cook Man- Winnipeg, itoba, Canada.
After Cook he married Lillie procured divorce, Dowell on December 11, 1924, but this second marriage did not last as he long secured divorce from her on March 1925. 31, No children were born as a result of either Jack Cook died marriage. intestate at Bend, 16th Oregon, day July, 1939, an estate leaving of an value of appraised $10,000, accumulated princi- after the pally dissolution of the second marriage. July 11, On filed a motion to set aside the order of default and decree entered in 1924. There were numerous grounds set forth in such motion —all of which have been abandoned on this ap- peal, excepting charge of fraud in “procuring order for the publication of summons.” July 24,
On State of Oregon, pursuant was petition, permitted file a complaint in interven- it tion wherein alleged substance that plaintiff died “without next intestate, of kin or heirs at law” *7 and that reason thereof by the estate was subject to the escheat to State Land Board.
After the trial hearing, court set aside the decree and granted of divorce defendant permission to file in the her answer divorce proceeding. From this last of Oregon the State order through its agent, the State Board, appealed. Land thereupon
Defendant moved to dismiss the appeal that an order ground the a vacating decree of divorce permitting appeal- defendant to answer is not by able order. The motion denied this to dismiss was (Cook 840) pointed (2d) court Cook, which purpose seeking out that defendant’s to set sole property aside the decree divorce was to the obtain by plaintiff left at the time of and that the death, Oregon State of had maintain sufficient interest to appeal. the
Subsequent to the above motion denial of to the again appeal, to dismiss moved defendant the dismiss contending aрpeal, this has never ob that court the Oregon, jurisdiction after in that the State of tained ap permitted having abandoned the intervene, been de Service of peal. in this contention. no merit seeWe decree and the the divorce to set aside motion fendant’s affidavit, support Land had on the State thereof was appeared hearing, Land Board State the On Board. attorneys, Hamilton”, “De Armond & .through its After the decree was decree. seeking the sustain Land Board by the State court, the circuit aside set transcript proceedings appeal notice filed no brought We see abandonment for review. here Oregon. The Land State appeal State of the Oregon, any agency is here the State of as Board, The of divorce be reinstated. decree urging subject matter and of the jurisdiction has court proceeding. to dismiss the Motion parties this again denied. is
Ok
Merits
filing
to set aside
decree оf di
motion
In
§
applied
L.
1-1007,
A.,
O. C.
con
vorce,
authority upon
circuit court to relieve
ferring
year
any
one
after notice
within
time
“at
party
*8
proceed-
“judgment,
or other
order,
thereof” from a
ing
against
through
inadvert-
his mistake,
him
taken
’’
neglect. Appellant
surprise,
inter-
or excusable
ence,
has
section of the statute
that
above
venor asserts
procured through
application
is
no
where a decree
equity
independent suit in
is neces-
fraud and that an
sary.
objection
procedure
made
followed was
No
to the
re-
therefore,
in
intervenor. We,
the lower court
question, see
relative to such
However,
serve decision.
Defendant asserts that a fraud was upon upon plaintiff, court in her, at the securing publication time of order for of summons, “well mail knew where would reach her” but, not- withstanding knowledge, falsely such averred in his publication affidavit for of summons that defendant Winnipeg, “now resides Manitoba, Canаda.” De- “addressing fendant further contends that mail, con- sisting complaint, any of summons and or mail, to a city large Winnipeg, popula- such as Canada, with a approximately people, giving tion of 300,000 without compliance the street and number is not in with requiring complaint statute summons to be mailed address.” to defendant’s plaintiff are not guilty
We
convinced that
was
According testimony,
of fraud.
defendant’s own
she
residing Winnipeg
at
the time the affidavit
publication of summons
for
was made, and continued
many years.
to do so
The affidavit, therefore, was
principal complaint
Her
not false.
is that, had
mailed summons
to her at Red Deer
Saskatchewan, Canada—which
Hill,
she asserts is her
permanent address —mail would have been forwarded
Winnipeg
street address in
to her
about 200 miles
correspondence
distant. The
and de-
between
fendant after the divorce decree was rendered —the
being Winnipeg
address of the latter
—substantiates
*9
theory
рlaintiff
good
the
that
in
acted
faith at the time
lips
the affidavit was made. Plaintiff’s
are sealed in
may
speak
plausible
death. It
be that if he could
a
explanation would be made of his failure to furnish a
street address. We think the affidavit of
that
(referring
wife)
“she
to his
is a
and
non-resident
has
state,
not
within said
resided within
is
now
never
Winniрeg, Manitoba,
was,
resides in
Canada”
now
but
to authorize the court to order
face,
on its
sufficient
compliance
§
1-607,
and is
with
service
substituted
publication
providing in case of
that the
A.,
L.C.O.
judge
copy
deposited
also direct a
or
shall
“court
be
to
forthwith
summons
place
post-office,
directed to the defendant
the
appear
shall
that such residence
unless it
residence,
of
making
application
party
the
known to the
is neither
by
diligence be ascertained
nor can with reasonable
him.”
wilfully false or if
if such averment
course,
Of
plaintiff
address and concealed the
her street
knew
depriving
op
рurpose
defendant of an
of
same for
might
the defendant
well com
portunity
heard,
be
to
question differs
plain
such
from that
but
fraud,
Certainly,
plain
jurisdiction.
in view of such
necessary
not
for
it was
averment,
definite
diligence had been exercised
find
due
that
to show
Oregon:
Kennedy,
v.
state of
Pike
in the
defendant
require
The law does not
Having held that fraud has not been estab might opinion well here. de lished, the end However, precluded prevailing by is from fendant also reason of knowledge many her or notice divorce decree years proceedings before she instituted it set aside. party The law is well settled that seeks re who to be judgment procured through lieved from a or decree diligence: fraud must exercise reasonable Carmichael 385; Or. 199 P. Freeman on Carmichael, Judgments (5 ed.) §§ § 9 R. L. & C. 451, 261. p. Equity vigilant sleep aids the but not those who rights. their case,
In the instant defendant waited for more than years fifteen she before undertook to set aside de- *10 plaintiff cree of divorce. In the meantime, remarried, explanation divorced his second and died. wife, In of delay, in supporting the defendant avers her affidavit set aside the the motion to decree that she “knew nothing of divorce until his after his death” —which will recalled in 1939—and it be was “that said decree surprise a of was to me.” divorce As to whether such averment of the defendant is speak: let record true, plаintiff’s
Letter from second wife to the defendant, saying 9, 1925, March dated told her divorced defendant. that he had plaintiff, to from defendant Letter dated November previous him in answer to a 21, letter 1925, from you “Suppose said: will bringing she be which wife, family. picture you ame Send your you you &write wife when better come new back & you family your a can live build new for me & house & place.” down the other Davis, Letter from Davis & then counsel for de- August fendant, dated 1934—which she admits re- ceiving advising :her —thus Mr. husband, Bend, former Cook,
“Your Jack Oregon, been in to and tells us that in a us, has see you you, him that recent with stated to conversation you legal as wife, his such entitled were still equity property. in his day you that on the 16th
“We wish advise granted February, of divorce was 1924, a decree your Oregon, dissolving your Statе of the Circuit Court husband marriage From and with him. you his and ceased ceased to be wife after that date property. any have now, in his You have interest to therefore, property in his or whatsoever no interest February support. any against him for Since claim remarry.” you free to have both been 16th, 1924 defendant made Prince In an affidavit at August 1939, she averred: Canada, dated Albert, nor from the said Jack Cook I never heard “That August bim Bed Deer Hill 1934at when I until see did him Mrs. Cowan Halcro. farm of at the I met my during I had hus- with conversation “That going sup- what he to do to him was I asked then band he had divorced me and I told port he said me and legal him wife and wished mainte- still that I the divorce which had him and that he from nance did not affect me.” States the United obtained Corrigal, sister of the defendant, tes- Mrs. Annie meeting and defendant about tified plaintiff’s in Canada after the home *11 former their at place marriage stated that at such time and second tell defendant “he divоrced and heard she again.” got married he had that her Defendant, own went according testimony, under name Bird of Mrs. since living while Her two also Winnipeg. children took the adopted name of Bird. that Testimony shows were plainly they man known wife their among as friends and as- she sociates, although she was says acting only as Bird’s hоusekeeper.
In light above record, there can be no doubt that defendant many years knew prior instant had secured proceeding a divorce from Laches, her. itself, precludes any equitable relief from to defendant the decree in question. setting
The order aside the decree of divorce is reversed the cause remanded with directions said reinstate decree.