De Foe v. De Foe, 169 P. 128

De Foe v. De Foe

169 P. 128 | Or. | 1917

Lead Opinion

Opinion by

Me. Chief Justice McBeide.

1. The decision of this motion turns upon the question as to whether the state is an adverse party in this proceeding. While the state is not a party to the record in the sense that it must be named in the complaint as a defendant, yet by the provisions of the statute it becomes sub modo a party to any divorce suit to the extent that it may appear and protect the community from the consequences of a divorce procured by fraud or collusion between the parties. The service of summons upon the district attorney is for the purpose of notifying him of the pendency of the *552proceedings, and his voluntary personal appearance at the trial indicating, as it must, that he had such notice is by the force of the statute above noted, equivalent to the service of such summons. Such appearance confers full jurisdiction upon the court, as far as the state is concerned, to proceed with the trial. If the state, as represented by the district attorney, is satisfied that the proceeding is bona fide; that the requirements of the law as to service of summons and residence of the parties have been complied with, and that there is no fraud being practiced and no collusion between the parties, there is no requirement that he intervene further. While such appearance of the district attorney confers jurisdiction, it does not in the absence of some motion or other pleading filed by him, confer upon the state any right.of appeal, or any right to be heard further in the case, unless it be the right on the part of the state to open up a default by reason of some fraud or collusion not known to the district attorney at the time of the trial, concerning which possible right, we do not here express any opinion.

In the case of Van Zandt v. Parson, 81 Or. 453 (159 Pac. 1153), this court speaking by Mr. Chief Justice Moore, defined an adverse party as,

“A plaintiff or defendant in an action or suit whose interest in regard to the judgment or decree appealed from, is in conflict with a reversal or modification of the final determination sought to be reviewed.”

The state never intervenes to procure a divorce, but only to prevent a fraudulent or collusive decree from being granted. The plaintiff having obtained a divorce, the state has no interest to be adversely affected by a reversal of the decree which would leave the marriage relation intact. See, also, D’Arcy v. Sanford, 81 *553Or. 323 (159 Pac. 567), where the same rule is announced. Also United States Nat. Bank v. Shefler, 77 Or. 579 (143 Pac. 51, 152 Pac. 234).

In Lee v. Lee, 19 Wash. 355 (53 Pac. 349), it was held under statutes similar to our own, that the state was not such a party to a divorce proceeding as to entitle it to appeal from an adverse decision. It is unnecessary to go to that extent in this case, and a case might well be imagined wherein the proceedings were so collusive and fraudulent as to justify a district attorney not only in intervening by answer or otherwise in the suit, but in appealing on behalf of the state should a divorce be granted; but where the state has not so intervened and the only effect of a reversal of the decree would be to prevent a divorce, we fail to see any reason why the notice of appeal should be served upon the district attorney.

The motion to dismiss is overruled.

Motion Denied.

Affirmed May 21, 1918.

Opinion on the Merits

On the Merits.

In Banc.

This is a suit for divorce. There was a decree for plaintiff and defendant appeals. Affirmed.

For appellant there was a brief over the name of Messrs. McCulloch & Wood, with an oral argument by Mr. Wells W. Wood.

For respondent there was a brief over the names of Mr. P. J. Gallagher and Mr. William H. Brooke, with an oral argument by Mr. Gallagher.

PER CURIAM.

2. The record contains a recital of the gross misconduct of the defendant, which it would serve no good purpose to spread upon the pages of the reports. The delinquency of the defendant is admitted, and the defense is that it has been expressly forgiven and condoned. We are satisfied that there has been no such forgiveness or condonation as is contemplated by our statute. The decree was correct and should be affirmed. Affirmed.