144 P. 753 | Or. | 1915
Lead Opinion
delivered the opinion of the court.
It is sufficient to consider only the second ground of the motion. We find that in respect to the subject-matter of the suit it is alleged in the complaint “that plaintiff is now and has been for more than one year last past and prior to the filing of the complaint herein, a resident and inhabitant of the State of Ore
“In a suit for the dissolution of the marriage contract, the plaintiff therein must be an inhabitant of the state at the commencement of the suit, and for one year prior thereto; which residence shall be sufficient to give the court jurisdiction, without regard to the place where the marriage was solemnized, or the cause of suit arose.”
Concerning jurisdiction of the parties, we learn from the record that the defendant Orr on May 22, 1911, entered his appearance by filing a general demurrer to the complaint, which demurrer was afterward overruled. It is said in Section 1020, L. O. L.:
“In any suit for the dissolution of the marriage contract, or to have the same declared void, the state is to be deemed a party defendant, and the party plaintiff in such suit shall cause the summons to be served upon the district attorney of the district within which the suit is commenced at least ten days before the term at which the defendant is required to appear and answer. It shall be the duty of such district attorney, so far as may be necessary to prevent fraud or collusion in such suit, to control the proceedings on the part of the defense, and in case the defendant does not appear therein, or defend against the same in good faith, to make a defense therein on behalf of the state. The court shall not hear or determine any suit for a divorce until service has been made upon the district attorney as hereinbefore provided, unless the district attorney or his duly appointed deputy waive the provisions of this section by appearing in person at the trial of said cause or by written acknowledgment of service waiving time for his appearance therein. * * ”
This is the amended form of that section embodied in Chapter 86, Laws of 1911. The state being a party defendant by operation of law, it appears in the record
“A judgment or decree may be reviewed as prescribed in this chapter, and not otherwise. An order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein, or a final order affecting a substantial right, and made in a proceeding after judgment or decree, or an order setting aside a judgment and granting a new trial, for the purpose of being reviewed, shall be deemed a judgment or decree. ’ ’
It is true that it is the constant practice of courts to strike from their records judgments and decrees which are void upon their face, but where they are merely erroneous or irregular, as appears in this case, our statute, aside from motions for new trial, makes the remedy by appeal exclusive as a method of attack in the same proceeding, for it says they shall be “ reviewed as prescribed in this chapter, and not otherwise.”
Among other requirements as they stood at the time of the rendition of this decree the chapter on appeals prescribes that resort to the Supreme Court shall be
Dismissed. Sustained on Behearing.
Rehearing
Former opinion sustained March. 2, 1915.
On Rehearing.
(146 Pac. 964.)
A rehearing was granted January 12 and cause re-argued January 27, 1915.
For appellant there was a brief over the names of Mr. M. G. Munley and Mr. Gilbert L. Hedges, District Attorney, with an oral argument by Mr. Munley.
For respondent there was a brief over the names of Messrs. Malarkey, Seabrook S Dibble and Mr. Frank Schlegal, with oral arguments by Mr. Dan Malarkey and Mr. Ephraim B. Seabrook.
In Banc.
delivered the opinion of the court.
Therefore, since it does not appear that the state has any interest in the litigation, and is also clearly in default (L. O. L., § 542), there is no good reason for disturbing the former opinion herein; and it must be adhered to. Former Opinion Sustained.