32 Wash. 494 | Wash. | 1903
The opinion of the court was delivered by
On January 17, 1902, the appellant obtained a decree of divorce from the respondent in an action in which no personal service of summons was had, the summons being served by publication. The proceedings were in all respects regular; there was a return by the sheriff on the summons to the effect that the defendant could not be found in his county; an affidavit for publication, stating the facts necessary to authorize a publication of summons; proof that the summons had been published for the required time; a default after the time for appearing had expired; and a decree rendered for a cause distinctly stated in the complaint, based on facts found by the court after a trial in which the prosecuting attorney of the county participated. Later on the respondent moved to vacate the decree, and for leave to answer; basing the motion on the files and records of the cause, and on the affidavit of the respondent filed with the motion. The affidavit set out matters which, if found to be true by .the court, might have warranted it in vacating the decree, in the exercise of its judicial discretion, were the case one in which a judicial discretion in that regard could be exercised; but it alleged nothing tending to show a want of jurisdiction of the subject-matter, or want of authority to render the particular decree. The appellant appeared and resisted the motion for want of jurisdiction of the court to entertain it. The court, however, overruled his objections, and entered an order vacating the decree and allowing the respondent to answer. An answer was thereupon filed, together with a cross-complaint, in which the
Of the errors- assigned, we have found it necessary to consider but one, namely: the power of the court to vacate the decree of divorce. The Code (¡Ballinger’s, § 4880)' provides:
“'If the summons is not served personally on the- defendant in the. cases provided in the last two- sections, he or his-representatives; on application and sufficient- cause- shown, a.t any time before judgment, shall be- allowed to- defend tbe action and, except in an action for divorce„ the- defend? ant or his representative may in like manner be allowed to defend after judgment, and within one year after the rendition of such judgment, on such terms as may be just; . . . .”
It is- evident that it was -the intention of tbe legislature by this section to- limit the right of a defendant to1 defend in an action for divorce to a time- prior to' the- entry of the judgment, while it continued the right' to defendants1 in other actions for a period of one year after that time. This1 means; that the trial court has' no1 control' over an action for divorce after it has once- rendered a decree therein; that while it may vacate judgments1 in other actions, for good cause- shown, if application he made to- if wi'thin one year, it has-no such' power’over a judgment rendered in an action for divorce. The’ court can, of course, lawfully vacate- such
The respondent urges, however, that there are other sections of the statute which provide for the vacation of judgments which make no mention of the restriction contained in this section, and hence the order can he sustained as a proceeding under those sections. But § 4880, above mentioned, was enacted subsequent in time to the other sections referred to by the respondent, and must he held to supersede them in so far as it conflicts with them. In this re
It follows, of course, if the court was without power to vacate the decree of divorce, its order in that respect was void, and its subsequent order for alimony and suit money equally so. The appellant could not be in contempt for refusing to comply with a void order (State ex rel. News Pub. Co. v. Milligan, 3 Wash. 144 (28 Pac. 369), and hence the judgment of conviction was erroneous.
The judgment appealed from is reversed and the cause remanded, with instructions to enter a judgment finding the defendant not guilty of the contempt charged.
Hadley, Anders, Dunbar and Mount, JJ., concur.