64 N.W. 73 | N.D. | 1895
Lead Opinion
The record in this action presents a state of facts which, so far as they are important to a decision of the question involved, may be stated as follows: The action is for a divorce from the bonds of matrimony, and was commenced by the personal service of a summons and complaint, which, after an order of publication was obtained, was made upon the defendant
Without adverting now to any of the facts contained in the numerous affidavits which were presented to the court upon the hearing of the motion below, it will be convenient here to pause and consider whether, upon the conceded facts appearing of record and already narrated, the District Court erred in denying defendant’s motion to vacate the judgment and allow her to interpose a defense to the merits of the action. In other words, was the judgment entered below upon the defendant’s alleged default a valid judgment, regularly and legally entered, or was such judgment illegally and irregularly entered? If the judgment was illegally entered, it would, of course, be prima facie valid, because it is conceded that the court entering the same had jurisdiction of the subject matter and of the parties to the action. But it is likewise true that if the judgment was irregularly entered — i. e. entered as a default judgment when there was no default in law or in fact existing, and while there was an issue of fact joined in the
The facts involved call for some consideration of the authority, power, and duty of an attorney in conducting a cause in court,
Enough has been set out to clearly show that the defendant’s counsel, in attempting to withdraw the answer of the defendant at the time and under the circumstances stated, did so, not only for the express and advertised purpose of betraying the cause intrusted to his protection, and allowing judgment to be entered as for a default in answering the complaint, but did so without
Enough has been said to fully dispose of the case presented in the record, and we will not prolong this discussion further, except to state that in our judgment there is ample in the affidavits presented upon the motion to have justified the trial court in granting the motion and opening the case upon the ground of surprise, under the authority conferred by section 4939 of the Comp. Laws. True, the application under that section of the statute would be addressed to the sound judicial discretion of the trial court, and would be in the nature of an appeal to the favor, and not in the nature of a demand of a strict legal right. But in that aspect of the application the refusal to grant the defendant an opportunity to be heard, in our opinion, presents a case of an unsound exercise of judicial discretion. It is urged by counsel that shortly after the divorce was granted — about one month thereafter —the plaintiff contracted another marriage with-, referred to in defendant’s answer, and that to now allow the judgment for a divorce to be vacated would be to invite results which may be disastrous to an innocent person, — yet unborn, — as well as the parties who have so precipitately entered into a new conjugal alliance. Upon authority, it is clear that judgments entered in divorce cases are open to attack in the same manner, upon the same grounds, and within the same periods of time as other judgments, and this court has already had occasion to apply this rule of law to a divorce case. Yorke v. Yorke, 3 N. D. 343, 55 N. W. 1095. See, also, Simpkins v. Simpkins, (Mont.) 36 Pac. 759; Cottrell v. Cottrell, 83 Cal. 457, 23 Pac. 531; Bell v. Peck, (Cal.) 37 Pac. 766. But, aside from authority, the rule commends itself to our judgment as a wise and conservative civic regulation tending
Concurrence Opinion
(concurring.) I fully concur in the opinion of the Chief Justice. I merely desire to answer the point of counsel for respondent that the proper practice was either to move for a new trial or to appeal from the judgment itself, and thus raise the question that the judgment was irregularly entered. It is contended on the part of the respondent that the trial court adjudicated on the same facts the question of the power of the attorney to withdraw the answer when it declared the defendant in default after such attempted withdrawal, and that therefore such court could not, on the motion to set aside the judgment as irregularly entered, review its own decision. It is insisted that defendant’s only remedies were a motion for a new trial and an appeal from the judgment. But how can it be said that the trial court had settled against the defendant, so as to bind her and force her to review the decision on appeal from the judgment, a question as