90 Wash. 74 | Wash. | 1916
On December 31, 1913, the respondent, as plaintiff, instituted an action in the superior court of Pierce county for a divorce against his wife, the present ap
The decree was entered on February 26, 1914, and on August 28, 1914, some six months and two days thereafter, the appellant filed a petition under the statute for a vacation of the judgment. In the petition it was alleged that the record upon which the decree is based is insufficient to support the decree; that the appellant has a meritorious defense to the action; that she is a German by birth, unfamiliar with court procedure, and was led to make default in the divorce action through deception and fraud practiced upon her by the respondent and his attorney, leading her to be
At the hearing upon the petition, the court tried the allegations of deception and fraud and, finding that none had been practiced upon her by the respondent or any one representing him which prevented her from appearing in and making a defense to the action, refused to inquire into the merits of her defense, and refused to set aside the decree on the grounds of irregularity or insufficiency of the proceedings supporting it. This is an appeal from the order evidencing the ruHng.
As to the question of fact tried by the court, we are inclined to agree with its conclusion. The charge against the respondent’s attorney has no foundation whatever. The appellant went to his office shortly after the service of process was made upon her. In the interview she told him she wanted no divorce, that the allegations of the complaint setting forth the grounds therefor were false, and that the proposed division of the property of the parties was inequitable. The attorney told her distinctly and emphatically that he was her husband’s attorney and could not act for her with reference to the matter of the divorce; that if she desired to defeat the action she must employ an attorney and defend, as default would be taken against her if she did not do so. With reference to the proposed division of the property, he told her that, if she did not wish to defeat a divorce, he would treat with her with reference to it. His testimony is to the effect that this branch of the case was gone over between them somewhat fully, and that he did make a change in the decree from that originally contemplated, favorable to the appeHant, as a result of the interview. It may be that the appellant, because of her unfamiHarity with court procedure and the language necessary to convey ideas pertaining thereto, did not fully understand him, but there is no cause to believe that he in any way misled her.
The appellant’s counsel, in their brief, assert that the record shows that the respondent cohabited with the appellant during the time the action was pending, and that she was led thereby to believe that the grievances alleged against her had been condoned and the action discontinued, but the record as we read it does not sustain the claim. The appellant details a circumstance from which it might be inferred that the respondent had cohabited with her during the time the divorce action was pending, but in answer to a direct question put to her by the presiding judge, inquiring whether he had done so, she answered in the negative. It is not necessary to argue, of course, that if the premise from which a conclusion is deduced fails of proof, the conclusion must fail also.
But it is claimed that the respondent was criminally intimate with another woman prior to and during the time the divorce action was pending, and that this fact is sufficient to require the vacation of the decree. The evidence which discloses this fact discloses also that the appellant had knowledge of the fact in sufficient time to set it up as a defense to the action and that she failed so to do. Her own negligence, therefore, is sufficient to estop her from having a vacation of the decree as a matter of right, on the principle that one having a valid defense to a divorce action and failing to set it up has no just ground to complain of the decree.
The appellant further contends that the decree is void and should be set aside because of the defects appearing on the face of the record. These consist, as we have noted, of a want of an allegation and finding that the plaintiff was a resident of the county of Pierce at the time of the commencement of the action, and a want of the finding of the specific facts upon which the decree was rested. But while these omissions from the record would have been sufficient to warrant the reversal of the decree on an appeal therefrom (Ramsdell v. Ramsdell, 47 Wash. 444, 92 Pac. 278), they are not sufficient to require its vacation by petition after the time for an appeal has expired. The decree is voidable only, not void, and vacation by petition is a remedy applicable only
As we said in the first case cited:
“To hold that the trial court should have entertained this motion and vacated this judgment would be, in effect, to permit the trial court to entertain upon motion an appeal from its own judgment, review the law of the case and reverse itself for error of law. The statute under which the motion was made was never intended to have that effect.
“ ‘The power to vacate judgments, on motion, is confined to cases in which the ground alleged is something extraneous to the action of the court or goes only to the question of the regularity of its proceedings. It is not intended to be used as a means for the court to review or revise its own final judgments, or to correct any errors of law into which it may have fallen. That a judgment is erroneous as a matter of law is ground for an appeal, writ of erroi*, or certiorari, according to the case, but it is no ground for setting aside the judgment on motion.’ 1 Black, Judgments (2d ed.), § 329.”
Our conclusion is that the order appealed from should be affirmed, and it is so ordered.