*1 tunity nor to controvert cross-examine
the effect such evidence.
The case be reversed should therefore trial, new in which
and remanded it itself bound
trial court shall consider shall the rules evidence and not sub- improper
mit the file evidence to or other jury. Ch. 188 We consider an uncon- upon preroga-
stitutional encroachment judiciary only
tives of the insofar as we respect phrase
have indicated with 12(h),
declared to be void in We do not necessary
deem discuss other errors
suggested behalf since a being granted,
new trial and since the
only claim process of denial due
equal protection has to do the consti-
tutionality provisions of the two we have
discussed. ' Reversed and remanded for new trial. EMERY, Appellant
Elizabeth S. (Plaintiff below), EMERY, Appellee
Charles W. (Defendant below).
No. 3395.
Supreme Wyoming. Court of
Aug. 9, 1965. *2 Lathrop, Lathrop, Lathrop, L.
Carl Cheyenne, appellant. Tilker, & for Buge, Buge, Chey- William R. of Ross & enne, appellee. for PARKER, J., Before C. and HARNS- GRAY, McINTYRE, BERGER, JJ. Mr. McINTYRE delivered Justice opinion of the court. Emery brought action in S. an Elizabeth district court to vacate a decree of divorce Emery 22 months granted to Charles W. previously. denying From a Emery appealed. Mrs. vacation vacating grounds assigned for One publica- proper service decree is Mrs. tion obtained on was not action, and in the divorce defendant jurisdiction to thereby the court lacked enter the decree. appellant’s counsel attack
Although bases on the a claim that service husband case, filing instant was the instru- his in connection with guilty of fraud attorney signed by publication, need ment Vincent A. Ross attempted service plaintiff. part: in- It recites guilty fraudulent adjudge him lack record a total tentions since the plaintiff “Comes now above named *3 or not— intentional of service—whether through and Ross, Vincent attorney his jurisdiction had no and the court therefore and states that he has been unable to grant the decree of divorce. assertain correct the address of [sic] W.R.C.P., requires, the “Before defendant 4(f), above named that with Rule made,” the by publication an excerise can be or reasonable service [sic] ” * * * stating, diligence. other filed among affidavit must be address, known, things, (1) defendant’s if only language Not is foregoing the so or (2) that is unknown defendant’s address ambiguous unintelligible and as be diligence and cannot with be as- reasonable nullity, attorney but indicates that the is certained. of these is es- One alternatives plaintiff) saying plaintiff (the for that “he” publication by sential before service can has been the unable to ascertain correct be made. address of the is not defendant. That what requires. requires the rule an affidavit It The affidavit for which was service stating the address of as defendant then made filed and Charles did not known affiant, unknown, or if state that un defendant’s address was affiant been unable to ascertain the same with known; neither did it state such ad diligence. exercise reasonable diligence dress cannot be with reasonable { Moreover, ascertained. the affidavit not did purported The second affidavit still state what defendant’s is. mere address stated the last known address of defendant ly stated the last of de known address Avenue, Chevy Chase, is 4610 Wisconsin Avenue, Chevy fendant was 4610 Wisconsin Maryland. However, following this state Chase, Maryland. falls short of This ment awas recital that notice mailed to present stating a known address. such address was returned with “no such copy The record that when discloses address.” situation, Under this the instru published of the notice was mailed to de- ment possibly could not be construed as Avenue, fendant-wife stating at 4610 Wisconsin the address of defendant as “then Chase, Maryland, Chevy Also, anybody. was returned known” to as we have al post out, ready pointed office marked “NO SUCH it cannot be construed necessarily STREET stating NUMBER.” This as person making that the the af place given means an address was fidavit has been unable to ascertain the nonexistent, and affiant had not stated de- address of defendant with the exercise of requires. fendant’s address, diligence. the law reasonable pro- paragraph The last of Rule 4(f) The instrument filed aas second af vides, in all is cases which defendant fidavit signed by plain not service was by publication served of notice there and tiff. At the end blank thereof is a line delivery has been no of the notice mailed with the name “Charles Emery, W. Plain clerk, plaintiff agent or his or typed tiff” “By” beneath. The signing was attorney, at hearing of the time and Ross, Vincent Attorney A. for Plaintiff. prior entry judgment, shall make an ex rel. State State Board of Charities stating: (1) affidavit of the address Bower, Wyo., & Reform v. 362 P.2d him; (2) defendant as then known to rehearing denied P.2d we said unknown, if he has been unable to as- an Wyoming affidavit which indicated certain the same with rea- the exercise of Hospital being State was sworn mean- diligence. sonable ingless, because the not affidavit was made only purported compliance The anyone. Although on the oath of the in- requirement affidavit, for a second strument in that signed case was before fatal; hospital, quired rule public by officer notary prevents the trial from least some such omission court at said there we further securing Wc signature was af- of defendant. the officer whose doubt if again cited successfully prosecuted for the authorities need not review be fixed could applies equal- swearing charged. holding holding. for this The were perjury if a false ly us. well to the case now before case more true same even The affidavit not make the Plaintiff did at bar. appellant-wife While counsel prosecut- he could not be question, matter, urged has not we think attorney swearing. does ed for false fact should call attention to the but for himself purport to swear presented further record us discloses person make *4 any to an for client. For his Emery. fatal defect in the service on Mrs. his at- by proxy “by through and oath proof publication reflects that of — meaningless torney” just as it is for as 18, publication July 1961. last of was —is date Hospital Wyoming to be sworn. State notice, According published defend to the County rel. Park Wel- County See Park ex 16, by August required ant to was answer Wyo., Blackburn, 394 Department fare v. Consequently, only days 29 were 793, P.2d 795-796. day following allowed for answer the last days pro publication, of instead of 30 re recognize that the affidavit We by 12(a), vided for Rule W.R.C.P. quired paragraph last of Rule present in This situation was exact plaintiff, can 4(f) or it be can be made Chittim, Supply Company National v. however, cannot, attorney. made his supra, and we there held the defect fatal be Such an made one for the other. jurisdiction 387 to of court. at See on in affidavit at best be made could P.2d 1012. belief, and we construe the formation and require positive verification. rule to Appellee appellant argues brought her action for vacation under Thus, §§ jurisdiction the court lacked 1-328, W.S.1957, 1-325 alleging and fraud decree over Mrs. when divorce pursuant W.S.1957; to 1-325(4), § for these reasons: was entered requires 1-328 a showing as to what § by plain- 1. Because the affidavit made defense, any, applicant origi if to tiff himself did not state defendant’s action; applicant nal and to failed address, necessarily means cor- showing. argument make such a This is address; neither it state rect did good because pertaining statutes to an alternative that ad- defendant’s judgments modification and vacation of was dress unknown and cannot with apply judg after term are intended to to ascertained; diligence reasonable be validity. ments having degree some of and attorney’s 2. Because the affidavit nothing subse- There is these statutes quently filed meaningless purports and which to or which breathe could void verify positively and failed to validity judgment wholly into a which is that defendant’s address was then void on being account of entered in the ab unknown affiant and that jurisdiction affiant sence of over the defendant. had Leith, 191, been unable Wyo. to ascertain the same In Wunnicke v. 157 with the 277, exercise of 274, judgment reasonable dili- P.2d this court said gence. wholly legal is in which is void effect nullity; consequently, showing and no Supply In Company National necessary support applica merits is Chittim, Wyo., 1010, 1011, 387 P.2d said tion to it have vacated. requirements pertaining of our rule by publication minimum; service According 1-325, authority is § any omission given of statements which are the district court to re- for “vacate judgment judgment. Modification The for should have been modify” divorce its own require consideration of vacated. necessarily would defense, rea- applicant’s good and there is Reversed and remanded instructions defense, provisions for to such relating
son to vacate. when is But even when fraud involved. wholly judgment is sought to vacate a GRAY, dissenting. Mr. Justice pro- jurisdiction, lack void for such majority agree holding I visions are irrelevant. the decree of divorce was void appellant be- want over the 693, Am.Jur., As stated 30A process. cause of the defective service of 659, power p. of a vacate a court to agree I would free also judgment regarded is and void as inherent any way “in at attack the decree independent statutory authority. any ** * by proper proceedings,” 658, time text, page the same is indicated Williams, Wyo. Bank of Commerce v. though that even void P.2d 110 A.L.R. permit a court it to nullity, will not en showing no a defense the action was cumber the record and will vacate the in necessary support application entry proper applica effectual thereof on *5 decree, Leith, Also, vacate the 61 at 49 Wunnicke Judg tion time. in C.J.S. Wyo. 191, My disagree- 157 P.2d pp. 480-481, ments it is said under 279. or § premise ment is the apart statutory provisions, with that the trial court invalidity from compelled grant appellant to judgment jurisdiction, of a relief de- for want of void spite all distinguished merely other circumstances in case. judgment from a the I think erroneous, exacting. voidable the law is that ground or is not for vacat ing it —at invalidity apparent least if such is property The case here is with dealing not on the face of the record. rights as in The record affirma- Wunnicke. tively property there was no in We think the correct rule is as by Wyoming affected the decree the stated in Holtzoff, 1327, p. 3 & Barron § decree dealt solely with the marital status (1958). 412 In discussing against relief a parties, of the a matter which trial over the void, judgment that is under Federal Rule jurisdiction. had court When there is add- (4), 60(b) judgment is said when the is appellee ed to remarriage the to question void there is no of discretion on the entirely person innocent far third —so part court; of the judgment either the is necessary this record is shows —I think it valid; void or it is the and when matter explore fully premise upon to more the validity resolved, its is the court must opinion which the holding majority accordingly. act rests. judgment A void is binding. not In the I first instance think the reliance rights equitable It confers no relief is placed pronounced by on the rule Barron proper prevent resulting harm from the & misplaced. application Holtzoff is The fact that the judgment appears purports or here was 60(b)(4) not made under Rule be Restatement, valid. Judgments, A.L.I. Wyoming Rules of Civil and it Procedure 117, p. (1942). 565 § was not so treated or court. here trial We are aware that Mr. Neither independent remarried was it an action within days five after the permissive divorce decree was enter- statutory procedures except- ed, and of regrettable course it is that his ed from independent the rule. It was an remarriage must be considered nullity. a invoking action equity powers of the However, we cannot judgment make a court. adoption It is not suggested void is for lack of valid of Rule 60(b)(4) abrogated previous de- parties. accommodate convenience of cisions of this cognizance court which took 750 * “* * questioned, It is not nor can Rush, Wyo. 406, power. Rush v. be, party against whom that a P.2d may granted decree void of divorce Co., 32 & v. Lederer-Strauss James estoppel from barred laches or be recog- 137, 141, also Wyo. 233 P. * * * attacking it. granting general rule
nized plaintiff’s vacate a true the fact of application to “It is mere refusing of an remarriage prevent does the court discretion not rests within the sound judg- A court, setting the divorce. though such from aside even trial procures can- wholly party or not divorce who void ment was void. Whether again marrying he tested his own act in is to that discretion was abused prevent setting aside equitable principles. See A. the court from by established However, Law, Judgments plaintiff’s new the decree. L.I. Restatement of § respect important marriage is an consideration p. (1942). 117(a), And' determining have been the decree courts whether divorce decrees the disposed equity done. 3 should Courts are insistent be be vacated. rather 1186, p. protect person who Judgments, an innocent third Freeman on says spouse, also to Ed.), has married divorced (5th this: protect possible marriage, * issue of such “* * gen- Decrees of divorce and manifest reluctance set aside erally in ordi- judgments treated like * * *” divorce. them nary set civil actions in suits to principle pronounced been cited aside, except so justifiable reluctance courts, them, approval jurisdictions. several other to annul manifested the faith of marriages second after the instant When the circumstances them have been contracted.” light the fore- case are viewed *6 question directly point here More in the unwilling equitable principles, I going am pronouncement b)' made is the succinct the trial court abused its dis- to hold that Boyd Supreme in v. Court of Colorado entirely it cretion. think warranted I was 608, Boyd, 293, was Colo. 189 P. did, finding concluding, in and as there said: brought in appellant had not the action guilty faith was of laches. There why good and the case “There is another reason support de- is substantial evidence should be The evidence reversed. brought termination. plaintiff the suit motives, pur- mercenary from for the record reasons this For undisclosed pose her subjecting of defendant departed of appellant the home from monetary is imma- Motive demands. year parties in in the South Dakota property involving terial in a suit remained and from time on only, rights to set hut in an action only. appellee in made wife of name She been aside a divorce there has where except a short her in the home East remarriage, a than something more Rapid in 1957 she returned to interval when involved; conscience, property rights is Dakota, City, in 1958 com- South June good faith, purpose, honesty of appellee. menced an action for divorce from required, and diligence reasonable again Upon filing of she the action laches, estoppel, and the doctrine of departed all times for the and at East *” * * acquiescence prevails. admission, since, by concealed her own appellee. That she Swift, from 29 N.W. her whereabouts Swift 239 Iowa 535, 539, Iowa, obtaining a divorce Supreme 2d not desirous of Court of was in certainly be The action faced with a because can inferred. void divorce decree repose simply there in Dakota laid of a defect constructive service and South pur- aside, when it used for judgment setting until 1963 was trial court appellee deposition pose taking the of say: this liad But, assuming in- for use that she was not information so to obtain informed entirely activity September 26, 1961, ready here is until Her and ex- stant action. pedient remedy desires to thwart was keeping with her available under the provisions 60(b), and studied effort was of Rule divorce. Rules Wyoming Skillful appellee’s appearance appellant of Civil made to avoid Procedure. Had moved be promptly the case could ground divorce action so the rule on the void, merits. That is difficult to that the tried on its I have no doubt property there was no that the trial understand when court would have vacated the appellant by state- involved and her own decree. But theory that was not the ad- self-support- by appellant ment established that she was vanced in the trial Ap- court. support ap- pellant’s from ing seeking theory and was no was that the decree was pellee. by fraud, and, course, the severance of vitiated Other than a motion showing marital relation she made no on subject appellant that score would harm, injury, injustice jurisdiction occasioned of the court. In re Bank only explanation Newcastle, Wyo. her the decree. The 89 P. of her expedient resistance to divorce was that offered remedy 1037. An was also avail- by appellee long to the effect that so able provisions 1-326, under the W.S. appellant could permits remain the wife —in ab- the setting aside aof appellee sentia —of she was entitled to cer- decree made publication on service when privileges tain “of the Officers’ Club and notice has not been again, received. Here however, the like” wife of a retired marine required would appellant have officer. If the decree were not vacated to submit to the of the court. apt privileges. she was to lose those That expedient remedy Another ap- available to by vengeful pellant was also motivated prompt trial of her own divorce purpose could be inferred from a minor case in South Wyoming -Dakota. The de- significant but incident. Her com- impediment cree furnished no to that action. appellee subsequent munication with to 1958 A decree that is void on the face telephone appellee Sep- was a call to record anywhere. is void 26, 1961, when, being tember after in- Appellant did none things. of these Rath- appellee’s formed remarriage, she called er, found, appellant as the trial court sat simply say, “Well, you got have two back inexcusably period for a of almost two wives.” Little wonder that the trial court *7 years permitted the innocent second equitable not moved to exercise its wife substantially change position to her powers. in life. She left her home in Wisconsin laches, As appears to the matter of appellant that appellee learned and moved of the divorce and into the home of appellee’s remarriage Rapid City. sup- in September It is not unreasonable to 1961. pose She testified that she was so that she established herself in informed the call Rapid community appellee. from a friend in City as the lawful wife of who had seen the appellee announcement far as the news- So the record paper. fixing Evidence for the first the date of the call time since 1955 has had a home, newspaper of the produced. was not shared brought with a wife who has that, From testimony tranquillity happiness. and from him of domestic Is appellee Rapid City destroyed that he simply satisfy returned to that all to be to shortly vengeful his new bride August purpose appellant' after to see 23, 1961, an happen? inference could be drawn that this did not I think not. To 18, prior September interest, occurred sometime contrary public do so is 1961, upon decency, morals, the last date good and to the welfare could appeal society. Swift, 62, have taken an from the divorce Swift v. 239 Iowa 539; 535, Shammas, decree. Had that been done the decree 29 N.W.2d Shammas v. question. would have been set aside without A.2d 210-211. N.J. here that lach- argues
Appellant’s counsel ac- that the apply for the reason es does not two-year peri- brought within the
tion was 1-333, W.S. provisions of fixed od prop- authority is cited
1957. No holdings the con- and there osition Grant, 233 S.C.
trary. v. Grant course, simple Of S.E.2d brought not this action was
answer is of this or statute State. rule governed independent action It was an
equitable principles. trial faced
Obviously the court was had decision. and difficult distasteful and it judgment, a void
in its records purge records policy courts hand, to the other judgments. such On power would be a undoubted
exercise such that the innocent second
solemn declaration nothing than a common
wife more I would hold
adulteress. part on the
there was no abuse discretion court, it exercised trial but wisely.
its discretion should be affirmed. Application
In the Matter Norman Clayton Hollister, Briggs, known also Corpus. for a ofWrit Habeas BRIGGS, Clayton Hollister,
Norman a/k/a Petitioner,
George WILCOX, F. Sheriff of Weston County, Wyoming, Defendant.
No. 3447.
Supreme Wyoming. Court of
July 22, 1965.