168 P. 501 | Ariz. | 1917
(After Stating the Facts as Above).— The appellant has devoted much of his attention to the questions of the legal sufficiency of the service of process on the defendant to acquire jurisdiction in the original action. Assuming that the court failed to acquire jurisdiction over the defendant, then the judgment and decree rendered were void absolutely, and upon a proper showing made would be set aside by the court rendering it at any time. McLean v. Territory, 8 Ariz. 195, 71 Pac. 926. The appellant contends and the record fairly sustains his contention, viz., that the process was regularly served upon the defendant by publication in the “Arizona Labor Journal.” As a consequence the judgment rendered on such service was not absolutely void.
This proceeding, however, is in its nature a proceeding within the contemplation of paragraph 592 of the Civil Code of Arizona of 1913, in that it is a case in which judgment has been rendered on service of process by publication, as contended by appellant, when the defendant in such ease has not appeared in person or by an attorney of his own selection. These conditions seem to be present, and the appellant does not dispute. Paragraph. 592, supra, leaves with the trial court the power to grant such defendant a new trial “for good cause shown, supported by affidavit filed within one year after rendition of such judgment.” The record discloses that such defendant, this appellee, has followed the form of procedure required by paragraph 593 of the Civil Code of Arizona of 1913, to invoke the power of the court; that is, the said defendant filed her complaint and caused service of process to be made upon the party adversely interested in the judgment as is required by law to be done in other eases. The order made from which the appeal is prosecuted responds to such procedure.
Has the appellee shown good cause, and supported such showing by affidavit filed within one year after the rendition of the judgment? The showing made and affidavit required were filed within one year’s time after rendition of the judgment. This fact is conclusively shown by the record. The inquiry remains whether the showing made is sufficient.
The appellee as a portion of her application tenders her answer which she offers to file in the original case. The sole
“That she has been at any time guilty of any cruel treatment toward said plaintiff, or that she has ever committed any outrageous acts toward said plaintiff, or that she continuously or at all quarreled at plaintiff, . . . but defendant alleges that she has at all times conducted herself toward plaintiff as a true and loving wife, and has devoted herself exclusively to the care of her home and to the raising of the children of herself and plaintiff. ...”
In support of this and other allegations in said answer appears a letter alleged to have been written by the appellant. The answer is verified by the affidavit of the appellee. If the material allegations of the answer are established by proof, the plaintiff in the original action ought not recover. Every defendant has a right to be heard when charged in court with the commission of a wrong. Under our law a defendant served by publication is given one year after a judgment is rendered on such service in. which to be heard in defense. Unless the proposed defense has merit the court will refuse to disturb the judgment. "When the application to be heard is made in the circumstances here present, the court should look no further than to determine whether the showing made is a good defense to the action, and as such presents a bona fide controversy to the court for determination. If such dispute is found to exist between the parties in the original cause, the court is in duty bound to vacate the judgment and determine such controversy. Of course, the determination reached is reviewable on appeal. All presumptions of its correctness follow such determination as would follow any other final order or action of the court. Upon review on appeal such order would not be disturbed unless the record shows error on its face. No error is shown on the face of this record.
The appellant attempts to show that since the divorce decree was rendered and before this proceeding was commenced, the appellant, relying upon the divorce decree as absolute, has again married another woman, and to vacate the said decree would work an irreparable injury. Granting all that
The order is affirmed.
FRANKLIN, C. J., and ROSS, J., concur.
As to opening, setting aside, and vacating divorce decree obtained by publication, see note in 19 L. R. A. 817, 819.
