R v. R

20 Wis. 331 | Wis. | 1866

Cole, J.

In the case of Wetherbee v. Wetherbee, decided at tMs term, it -was Reid that a judgment of divorce might be set aside on motion at a subsequent term, on the application of the defendant. It appeared, however, in that case, that the service of process was void, and that consequently the court never acquired jurisdiction of the person of the defendant. Whether, if jurisdiction had been acquired of the person of the defendant by proper service of process, it would have been competent for the court at a subsequent term to set aside a judgment of divorce for cause shown, either by virtue of its inherent powers over its judgments, or under section 38, chap. 125, R. S. (when the application is made under that provision of law), was a point not decided. It is contended that it is the policy of our laws that judgments of divorce from the bonds of matrimony should not be set aside, but should stand from the moment they are pronounced; and this argument is based upon certain supposed consequences which would follow in case' of a second marriage, and issue born, if the practice of vacating such judgments should obtain. And it is likewise insisted that this view derives great force from the language used in the latter clause of section 10, chap. 124, which provides that when the summons is not personally served on the defendant, nor received by such defendant through the postoffice in the cases provided for in that section, “ he or his representative shall, on application and sufficient cause shown, at any time before judgment, be allowed to defend the action ; and except in actions for divorce, the defendant or his representative may, in like manner, upon good cause shown, be allowed to defend after judgment, at any time within one year after notice thereof, and within three years after its rendition, on such terms as shall be just, except in actions for divorce.'1'1 Now what effect should be given to this language, or whether it restricts or prohibits courts in divorce cases from exercising the power granted in section 38, chap. 125, is a point not necessary now to be settled. For we are well satisfied that by it the legislature did not intend even in divorce suits to interfere witb or take away tbat power and control wbicb courts bave heretofore exercised over them judgments rendered at tbe same term. We suppose it to be a well settled principle tbat courts of record bave full power to amend, correct or vacate judgments during tbe term at wbicb they were rendered, upon proper application made for tbat purpose; and tbat until tbe close of tbe term sucb judgments are within tbe control of tbe court. In tbis case tlie application to set aside tbe judgment of divorce from tbe bonds of matrimony was made at the same term tbe judgment was rendered. Tbe application therefore came billy within tbe principles above referred to. And tbe matter stated in tbe affidavits in support of tbe motion to vacate tbe judgment presented a fit case for tbe exercise of tbis power on tbe part of tbe court.

By the Court — -Tbe order of tbe circuit court vacating tbe judgment is affirmed.