174 P. 721 | Or. | 1918
Lead Opinion
This is a motion to dismiss an appeal, .the alleged grounds thereof being (1) that there was no service of a copy of the' undertaking upon the respondent, and (2) that the order appealed from was not an appealable order, being a matter wholly within the discretion of the trial court.
It appears from the record that upon the trial and final disposition of a divorce suit begun by plaintiff against the defendant, the court awarded the custody of a minor child of the parties to the plaintiff. Subsequently, defendant applied to the court for a modification of that portion of the decree giving the mother the custody of the child. His application being denied, he appealed to this court. Being unable to find plaintiff’s attorney at his office, defendant attempted to serve the undertaking by leaving a copy at his supposed residence. Plaintiff’s attorney did not in fact reside at the place indicated and the service was void. We are of the opinion that the appellant’s attorney acted in good faith in attempting to serve the undertaking as recited, and that the case comes fairly within the provisions of Section 550, subdivision 4, L. O. L., which is as follows:
“From the expiration of the time allowed to except to the sureties in the undertaking, or from the justification thereof if excepted to, the appeal shall be deemed perfected. When a party in good faith gives due notice as hereinabove provided of an appeal from a ■ judgment, order, or decree, and thereafter omits, through mistake, to do any other act (including the filing of an undertaking as provided in this section) necessary to perfect the appeal or to stay proceedings,*647 the court or judge thereof, or the appellate court, may permit an amendment or performance of such act on such terms as may be just.”
Such is the holding in the case of Dowell v. Bolt, 45 Or. 89 (75 Pac. 714). In the present case appellant has asked leave to file an additional undertaking. We are of the opinion that an appeal lies from an order of the court granting or refusing to grant a change in the custody of infants: 14 Cyc. 814; Greenleaf v. Greenleaf, 6 S. D. 348 (61 N. W. 42).
The case of Pittman v. Pittman, 3 Or. 472, bears by analogy upon the matter here under consideration. In that case the defendant obtained a decree of divorce, which granted her the custody of ,a minor child and the appeal was from that portion of the decree only. It was held that an appeal would lie. Even if, as contended by respondent here, the order as to the custody of the child was a matter within the sound discretion of the court, that fact would not bar an appeal, as the appellant would still have the right to obtain the jurisdiction of this court as to whether or not such discretion had been abused.
The motion to dismiss will be denied, conditioned that appellant within twenty days from the date of this order, serve and file in this court a sufficient undertaking on appeal. In default of filing such undertaking within the time limited the appeal will be dismissed.
Denied Conditionally.
Opinion on the Merits
Argued September 30, affirmed Oetober 14, 1919.
On the Merits.
(184 Pac. 272.)
“In case of a judgment, decree or order against a specific thing, or in respect to, the probate of a will or the administration of the estate of a deceased person, or in respect to the personal, political or legal condition or relation of- a particular person, the judgment, decree or order is conclusive upon the title to the thing, the will or administration, or the condition or relation of the person.”
Nevertheless, as stated by Mr. Chief Justice Moore in Gibbons v. Gibbons, 75 Or. 500 (147 Pac. 530):
“The welfare of these infants is paramount to the rights of any person. * * The court granting the decree of divorce is authorized to modify it at any time so as to provide for the care, custody and support of the minors, and may impose such burden upon either ór both parties to the suit.”
In his affidavit supporting his motion he says that the plaintiff took the child to Ashland but that he has no knowledge about what disposition was made of it or in whose keeping it has been placed. He then states that about January 1, 1918, the plaintiff returned to Portland and since about the twentieth of that month has been living and cohabiting with one Frank W. Moore, 'as husband and wife, residing at 358 Thirteenth Street in that city. He alleges upon information and belief that the plaintiff and Moore are husband and wife and that Moore is able to care for and support her. Further deposing on information and belief, he avers that the plaintiff has abandoned the child and has shown by her acts since the filing of the decree that she is not a fit person to have the custody of the child; and, lastly, that he himself is ready, able and willing to support it. He then produces the affidavit of Mrs. Rankin, the keeper of the rooming-house at the address named, to the effect that about January 20, 1918, a man and woman giving the name of Mr. and Mrs. Frank W. Moore and representing themselves to be husband and wife, rented a single room with but one bed and were registered in a book kept by the affiant as a register of all tenants, and that they occupied said room continuously until March 12th. She further relates in substance that on the last-named date someone inquired by telephone for Mrs. Moore, whom
Douglas Lawson gave his affidavit to. the affect that on March 12th he inquired hy telephone for Mrs. Moore and when she came to the instrument speaking, he recognized the voice as that of the plaintiff, Mrs. McKissick. He further states that afterwards on the same date the defendant and he met the plaintiff, whereupon the former addressed her as “Mrs. Moore” and she replied, “I am not Mrs. Moore. I am Mrs. McKissick.” He also narrates the circumstance of going to the rooming-house and his conversation, and the exhibition of the photographs as stated.
Another affiant gives a statement about the interview with Mrs. Rankin and the inspection.of the register. There are other affidavits about inquiring of other individuals for the address of Mr. and Mrs. Moore, and information given in answer to such inquiry although not in the presence of the parties. An insurance agent deposes about the application of Frank W. Moore for insurance, representing himself to be a married man, residing at the address of Thirteenth Street.
The plaintiff filed her counter-affidavit, denying categorically that she had ever occupied any room with Moore or cohabited with him at any time or place. She complains that almost continually since they separated, and ever since the divorce, the defendant has followed and annoyed her so that she was compelled to change her place of residence and that on account
Another affiant speaks very highly of the plaintiff’s parents and of their ability to take care of the child, whom they have had almost all of her life. She speaks in the warmest terms of the plaintiff’s attachment to the child and of the plaintiff’s good character.
Moore states that he made the application for insurance at the request of the defendant himself and that it was a fake application. He expresses contrition for his dissimulation in the matter and states that as soon as the plaintiff began her work at the Hazel-wood store the defendant began shadowing the place and followed and accosted the plaintiff on the streets, frequently stopping and annoying her, so that to avoid him she often had some of -the girls, her fellow-employes, to accompany her. The defendant never re
Mrs. Eankin supplies an affidavit on behalf of the plaintiff, denying that she kept a register at her house. She declares that she supposed that matter had been stricken from her affidavit which she was asked to sign on behalf of the defendant; that Moore was on the premises only a few times after renting the room and that she knew Mrs. McKissick was ill for some time while rooming there. This is substantially the showing made in the matter before us.
“It appears that the plaintiff is not an adultress and that she is a woman of good moral character who has been guilty of certain indiscreet conduct which age and experience will no doubt correct.”
The court was right in denying the motion and its decree is affirmed.
Affirmed.