193 P. 731 | Idaho | 1920
On the twenty-sixth day of October, 1915, a judgment was i entered in the district court for Twin Falls county in an action wherein John Tongren, now deceased, was plaintiff, and the respondent, Emma Tongren, defendant, dissolving the bonds of matrimony between the parties on the ground of desertion. From the judgment-roll it appears that the service of summons purports to have been by publication. On the twenty-third day of March, 1918, respondent filed a motion in that action wherein she sought to have appellant Nixon as administrator with the will annexed of the estate of John Tongren, deceased, substituted as party plaintiff, and asked for an order declaring the judgment decreeing divorce void; for the reason that she had not been served in the manner prescribed by statute, and that the court had never ac
The only assignment discussed is that the court erred in sustaining the motion for an order declaring void the judgment decreeing the divorce. It is apparent that the motion which was made by respondent in the original action was not made until two years and five months after the judgment had been entered. C. S., sec. 6726, which defines the power of the court to permit amendments, relieve from defaults, and vacate default judgments, contains among others the following provision:
“When from any cause the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant, or his legal representative, at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action.”
Under this provision the court was without jurisdiction to entertain a motion to vacate the judgment for the obvious reason that the motion was not made within the time limited by this statute. (People v. Temple, 103 Cal. 447, 37 Pac. 414; People v. Davis, 143 Cal. 673, 77 Pac. 651.) In the Temple case, the court not only announced the rule applicable to the case at bar, but pointed to the way out of the difficulty in the following language:
“When a judgment is not void,upon its face, the court has no power to set it aside on motion, unless the motion is made within a reasonable time, but resort should be had to an action, and all the parties interested should be notified and have an opportunity to be heard.”
C. S., see. 6901, provides, in so far as its provisions are applicable to the point under discussion, that in ease the complaint be not answered by the defendant, the judgment-roll shall consist of the summons with the affidavit or proof of service, the complaint with a memorandum indorsed thereon that the default of the defendant in not answering was entered, and a copy of the judgment. Under this section this court held in O’Neill v. Potvin, 13 Ida. 721, 93 Pac. 20, 257, following the rule announced in Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742, that neither the affidavit for the order of publication, nor the order was a part of the judgment-roll, in effect thereby overruling upon this point Strode v. Strode, 6 Ida. 67, 96 Am. St. 249, 52 Pac. 161, relied upon by respondent. See, also, People v. Temple, and People v. Davis, supra. In the O’Neill case Chief Justice Ailshie, in his concurring opinion, expressed the hope that the legislature would amend the statute so as to specifically require the affidavit and order for publication to be made a part of the judgment-roll, but so far the legislature of this state has made no such amendment. The California statute, however, has been' amended by adding thereto the provision, “And in ease where the service so made be by publication, the affidavit for publication of summons, and the order directing the publication of summons, must also be included.”
From an inspection of the judgment-roll in this case it must be said that there is nothing on the face thereof to indicate that the service had by publication was defective or that the judgment was void. The order of the court declaring the judgment void was therefore erroneous.
The order is reversed. Costs are awarded” to appellant.