Henry v. Henry

15 S.D. 80 | S.D. | 1901

Fueeer, P. J.

On the ad day of December, 1899, a motion, supported by affidavits, and specifying want of jurisdiction, fraud, and deceit, and insufficiency of the evidence, was made in the trial court to vacate a decree of divorce entered in favor of plaintiff on the 28th day of July, 1898, and this appeal is from an order overruling the same.

. Defendant being a non-resident of this state, substituted service was resorted to by the issuance of a summons, and its publication for the required period, and by which notice was given that the complaint was filed in the clerk’s office on the 9th day of November, 1896, while, as a matter of fact, it was not so filed until a few days prior to the entry of the decree here sought to be annulled. From the entire record it reasonably appears that plaintiff had been a resident of this state for the necessary time, that the affidavit upon which the order for substituted service was based, and the publication made pursuant thereto, substantially comply with the statute, and the charge of fraud and deceit in obtaining the divorce is not sustainable.

The failure to file the complaint, as required by statute, when considered with the further fact that there was seemingly an unwarranted delay in mailing to the defendant a copy of the summons and complaint, may be deemed fatal to the jurisdiction of the trial court, but the defendant, who now appears generally, has. cured such jurisdictional defect. Though it is stated that the appearance is special, his motion goes directly to the merits of the case, for the express purpose of- defeating plaintiff's action, for the reason, among others, that the evidence is insufficient to sustain the decree. By numerous affidavits offered in support of this motion, the legality and probative force of the evidence is questioned, its sufficiency to justify the decree is denied, and, by way of an affirmative defense, specciffc fraudulent acts on the part of plaintiff are alleged. Had ap-' plication been made to set aside the default, and allow the defendant to come in and defend, the contrary affidavit of plaintiff, considered with his showing, would probably be sufficient to repel the imr putation of fraud, and justify the trial court in refusing to interfere with its decree. In North Dakota (Yorke v. Yorke, 55 N. W. 1095) the court say: “When a party who has not been properly served with process appears in a case, and asks to have a decree against him set aside for the reason that the court had no jurisdiction of his person, and for the further reason that such decree was procured by fraud and deceit, and was without evidence to support it, such appearance is general, and is a waiver of all defects in the service of process.” Anderson v. Coburn, 27 Wis. 558, is a case where a defendant sought to set aside a judgment on account of defective service, as well as insufficiency of the evidence, and the court held that the appearance was general, and a waiver of all jurisdictional defects. In view of the defendant's general appearance, and the absence of fraud on the part of plaintiff, we are convinced that the motion to vacate the decree was rightfully overruled, and the order appealed from is affirmed.