Newell v. Newell, No. 16,352

No. 16,352 | Neb. | Mar 16, 1911

Reese, C. J.

This was an action for divorce and alimony. Defendant appeared generally, first, by application for extension of time in which to answer, and, second, by filing an answer to the merits. Upon application by plaintiff, defendant was ordered to pay certain sums of money for temporary alimony, suit money and attorney’s fees. This he failed to do, and, upon motion, the court ordered his answer to be stricken from the files. That order was erroneous. McNamara v. McNamara, 86 Neb. 631" court="Neb." date_filed="1910-04-23" href="https://app.midpage.ai/document/mcnamara-v-mcnamara-6659088?utm_source=webapp" opinion_id="6659088">86 Neb. 631. No exception was taken to the decision, and no appeal was taken from the final decree of divorce and alimony, which was subsequently rendered. The cause was tried, and on January 17, 1908, the court filed a memorandum of the decree granting the divorce and ordering the payment of $1,000 alimony. On the 14th day of January, 1909, defendant filed his motion “to strike and dismiss and vacate from the decree * * * the judgment for permanent alimony,” for the reasons that (1) service was had upon defendant by publication; (2) no personal service of summons was had upon defendant; (3) defendant was not permitted to be heard in defense of such judgment; (4) the judgment for permanent alimony was rendered without giving defendant the right and opportunity to be heard in defense; (5) defendant’s answer being arbitrarily and without just cause stricken from the files, his personal appearance was stricken from the record with it; (6) defendant’s attorney having withdrawn from the case, there was no appearance in his behalf; (7)' the decree for permanent alimony , is void and rendered against defendant without due process of law. This motion was not presented to the court until the 3d day of March, 1909, when it was overruled, to which defendant excepted, and brings that ruling to this court by appeal. No brief, argument or other appearance is made by plaintiff in this court, and the cause is submitted upon the brief of defendant, the appellant.

It is contended by defendant tbat tbe striking of his answer from the files divested tbe court of all jurisdiction over him, and that its future decree is void for want of such jurisdiction. This contention is based largely upon tbe alleged fact that jurisdiction was obtained by publication. We need not inquire here whether tbe jurisdiction was obtained in the first instance by publication or pex*sonal service, as tbe general appearance made perfect that jurisdiction, without reference to tbe service, or, indeed, if any service was bad. As we have seen, tbe order striking tbe answer from tbe files was erroneous, and tbe decree' could have been reviewed and tbe error corrected by appeal. So far as is shown by tbe record then made, that action of tbe court was entirely satisfactory to defendant. By failing to appeal be lost his right to have that order reviewed. Tbe motion to strike out a part only of a decree, leaving tbe divorce stand, cannot be treated as a motion for a new trial, for that seems not to have been desired. Tbe appeal from tbe overrating of the motion cannot have tbe effect of bringing up the whole case for review. Tbe law provides a method for tbe correction of errors, and the proceeding here adopted does not comply with any of its provisions.

The order of tbe district court overruling defendant’s motion cannot be reviewed, and tbe appeal is dismissed at defendant’s costs.

Dismissed.

Letton, J., not sitting.