288 P. 507 | Or. | 1930
Opinion on the Merits
On the Merits
This is a "suit for a divorce wherein the complaint was filed by the husband (appellant) November 26, 1929, in the circuit court of Washington county; he. alleged that both parties were residents of that county. The summons and the complaint were Served upon.the wife (respondent) December 10, 1929, in Multnomah county. Eight days thereafter she appeared specially and moved for a dismissal “upon the ground that there is now pending in the circuit court of Multnomah county, state of Oregon, a suit for divorce between the parties named in this suit *■ * * as will more particularly appear by reference to the exhibits. * * *” An affidavit of the defendant, attached to the motion as .an exhibit, averred that March .13, 1929, she instituted in the circuit court for Multnomah county a suit for a divorce and that subsequently her husband filed an answer to her complaint. January 8, 1930, the motion was overruled. January 2.5, 1930,- this defendant, Mary LaFollett, filed an answer entitled “Answer and Plea in Abatement and Bar,” which, in addition to denying the allegations of the complaint which averred that she resided in Washington county and had breached her marital duties, alleged the following by way of abatement: On March 13, 1929, she filed in the circuit court of Multnomah county, a complaint seeking a divorce from this plaintiff; April 23, 1929, her complaint, together with the summons were served upon this plaintiff; March 10, 1929, he, the husband, filed a motion for a change of venue which was denied May 21, 1929; during the
An examination of the complaints, that is, of the one filed by the wife in Multnomah county and the other filed by the husband in Washington county, discloses that each sought the divorce on charges of cruel and inhuman treatment, and that each prayed for the custody of the minor children.
The service of the complaint and summons in the Multnomah county suit upon the husband, his motion for a change of venue, his motion attacking the form of the pleadings, and his answer to the merits, clearly established the jurisdiction of the circuit court of Multnomah county over both himself and the subject-matter of the suit: State ex rel. v. Norton, 131 Or. 382 (283 P. 12); Hanzlik v. Hanzlik, 110 Or. 95 (222 P. 1081); State ex rel. v. Almeda C. M. Co., 107 Or. 18 (212 P. 789); Williams v. Seufert Bros. Co., 96 Or. 163 (188 P. 165, 189 P. 636); Jones v. Jones, 59 Or. 308 (117 P. 414).
It follows from the foregoing that the decree of the circuit court will be affirmed.
Lead Opinion
This matter comes on to be heard on motion of defendant and respondent to dismiss the appeal. Plaintiff and appellant served a notice of appeal on the 17th day of March, 1930, but never served an undertaking on appeal. Appellant filed an undertaking without serving it on respondent. ' Service of the motion to dismiss was accepted in Multnomah county on the 13th day of May by John A. Jeffrey, one of the attorneys for appellant. The motion with’ proof of service indorsed thereon was filed in this court on the 14th day of May, 1930. Appellant has not made any request to file an amended undertaking or to excuse his failure to comply with the law. The law requires the undertaking with proof of service indorsed thereon to be filed within 10 days after service of the notice of appeal: § 550, Or. L., subd. 2. Respondent did not discover that an undertaking had been filed in this court until the 7th day of May, 1930.
The motion will have to be allowed and the appeal dismissed.