59 Mich. 296 | Mich. | 1886
Complainant obtained a decree of divorce from the defendant in the circuit court for the county of Manistee, in chancery, December 2,1882. January 12,1885, the defendant filed in the same court a petition to have the decree set aside, that she might answer complainant’s bill, take proofs as the court might direct, and have a rehearing of the case. Her reasons, after setting out the merits of her cause, are briefly these: She was not in the State when the bill was filed, and had not resided therein for several months preceding such filing; the decree was obtained without her knowledge or consent, or that of her solicitor, as she believes; that she employed an attorney, Mr. Phinney, who entered her appearance in the cause in due season, and demanded a copy of complainant’s bill; that she is informed and believes that no copy of the same was served upon him; or any notice given him of subsequent proceedings in the case; that no order for subpoena was ever entered, and no subpoena issued; no order of publication was ever granted, and no publication made; that said bill was never taken as confessed, as authorized by the rules and practice of the court; that the order pro oonfesso entered was the usual general order, and not signed by the register in chancery, and the proofs taken under the same were therefore irregular ; that the complainant, without any order, was examined in his own behalf, and did not sign his deposition; that the commissioner reported and recommended a decree on the ground of desertion, and the court granted one for extreme cruelty; that the decree had never been enrolled; and that complainant had not remarried, and there were no minor children of the marriage.
No proposed answer was filed with her petition, and it was not supported by proof of any kind, save a reference to the files and records in the cause. The solicitor, Phinney, made no affidavit, nor was any reason given why he did not do so. No excuse was offered for the laches of defendant in not sooner moving in the matter.
“ General Order Pro Confesso.
“ Parties: Richard Long, Complainant, v. Mary L^ong, Defendant.
“ State of Michigan — The Circuit Court for the County of Manistee — In Chancery.
“Entered July 10, 1882.
“ On filing due proof of personal service of the subpoena issued in this cause on the defendant therein, on or before the return-day thereof, and more than twenty days having elapsed since said return-day and said defendant not having appeared, on motion of S. W. Fowler, solicitor for the complainant, it is ordered that the bill of complaint filed in this cause be, and the same hereby is, taken as confessed' by the said defendant, and that it is referred to E. J. Richmond, a circuit court commissioner, to take proofs of the' facts and circumstances stated in said bill, and that said commissioner, with all convenient speed, report to this court said proofs, together with all other matters hereby referred to-him, and his opinion thereon.
“Register in Chancery.
S. W. Fowler, Solicitor for Complainants
Over two years have elapsed since the granting of this-decree. No sufficient showing is made that defendant’s-solicitor did not, have knowledge of it at the date of its entry. On the contrary, it appears that he had due notice-
The order pro confesso is not in the form that it should have been under the rules and practice of this Court, but all the substantial requisites necessary to entitle the complainant to a proper order were substantially complied with; and notice of taking proofs being served upon defendant’s solicitor, and no excuse whatever being presented' for this delay, we are not disposed to set aside the decree on this account.
Without' any copy of proposed answer accompanying the petition, and the time for appeal having long ago expired, under the practice and decisions of this Court, without any excuse whatever for the delay, as a matter of right, the defendant cannot claim a re-opening of the case: Benedict v. Thompson, above cited; Bart v. Linsday, Walker’s Ch. 74, 75. Nor will a confessed irregularity, that is purely technical, and in no way affecting the merits, furnish ground for setting aside a decree of divorce, unless the application is made at the first opportunity : Johnson v. Johnson, Walker’s Ch. 312; Gould v. Castel, 47 Mich. 604; Creveling v. Moore 39 Mich. 563.
The proofs taken in the ca'use, in our opinion, under the pleadings, warranted the granting of the decree. The circuit judge refused to grant- a rehearing because of the inexcusable laches of' the defendant in the premises, and his action must be affirmed, but without costs to either party in this Court.