188 P. 275 | Utah | 1920
Lead Opinion
This is an original proceeding in this court, praying for a writ of certiorari directed to Hon. J. D. Call, judge of the district court of Cache county. The purpose of the writ is to review an order of the court setting aside and annulling an interlocutory decree of divorce made by the court on August 29, 1919. The interlocutory decree was entered in an action then pending in'said court wherein the plaintiff here was plaintiff and her former husband defendant.
It appears, both from the affidavit filed in this action and the answer of the defendant, that on or about the 18th day of July, 1919, the plaintiff filed in the district court of Cache county a complaint against Charles B. Murray, her husband, praying for a decree of divorce. Summons was served on the defendant, and upon failure to appear his default was regularly entered. Thereafter the court heard testimony in support of the allegations of the complaint, made findings of fact, and entered an interlocutory decree, granting plaintiff a divorce upon the grounds mentioned in her complaint. That decree was made on August 29, 1919. Subsequently, in December, 1919, the defendant Murray was on trial before said court as the defendant in a criminal proceeding, and during his examination he stated that he had never seen the complaint in the divorce proceedings. On the same day Murray stated to the court that he and his wife,'plaintiff here, had entered into an agreement, prior to the filing of the divorce action, whereby he had agreed not to appear in that action in consideration of his wife not asking for alimony. It also seems that on this same date Murray stated to the court that the allegations in the complaint in the divorce proceedings were not true. Thereupon the court, it seems, called the attention of the attorney for plaintiff to the information which he had received, and the
“It is ordered by the court, upon its own motion, that the alleged decree of divorce, together with the findings of fact and the conclusions of law made and entered in said case on the 29th day of August, 1919, be and the same is hereby annulled, vacated, and set aside; the decree to be of no force or effect.”
It is the contention of the petitioner, plaintiff, that the court was without authority to make this order; that it had no jurisdiction to make any order affecting her rights under the interlocutory decree, without notice and an opportunity on her part to present proofs to show that no sufficient cause existed authorizing the court to annul or modify the decree of divorce.
The defendant court relies upon section 3002, Comp. Laws Utah 1917, as authority for making the order complained of. That section is as follows:
“The decree of divorce shall become absolute after the expiration of six months from the entry thereof, unless proceedings for a review are pending, or the court before the expiration of said period for sufficient cause, upon its own motion or upon the application of any party, whether interested or not, otherwise orders.”
The grounds upon which either party to a marriage contract may be released from the obligations of that contract-are enumerated in the statute. The right of divorce is therefore a statutory right. The right of the complaining party to receive from the courts a decree dissolving the bonds of matrimony is not one discretionary with the courts to refuse. Whenever the parties are before the court, and the pleadings are sufficient to support a decree,
Under section 3000 of the Code, the court may, at the time of making the interlocutory decree, make such orders relating to the children, property, and parties, and the maintenance of the parties and children, as shall be equitable. The force and effect of such a decree on the right of the parties has been discussed by this court in Parsons v. Parsons, 40 Utah, 602, 122 Pac. 907. That the decree of August 29, 1919, dissolving the marriage, gave to the plaintiff a real, substantial right, cannot well be questioned. If the allegations of the complaint are true, and the court found such to be the fact in its findings, she was thereby relieved from an intolerable existence. She.was released from bearing the name of the man whose treatment rendered her existence little less than that of slavery. The effect of the interlocutory decree being to vest in plaintiff
True, in section 3002, supra, proceedings to review the decree upon the court’s own motion are mentioned; but it was not within the contemplation of the Legislature that sufficient cause could be determined to exist without an opportunity given to the parties interested to be heard in defense of any rights granted by the interlocutory decree. “Sufficient cause” means legal cause. To
The order of the district court of December 6, 1919, must be held to be a nullity and of no effect. The writ will therefore issue, directing the court to set aside and cancel its order of December 6, 1919. It necessarily follows that the interlocutory decree of August 29, 1919, is, and has been at all times since its entry, in full force and effect.
Rehearing
ON APPLICATION FOR REHEARING.
The defendant has filed a petition for rehearing., The ground upon which a rehearing is sought is that this court did not determine one of the questions which induced the district court to make the order setting aside the interlocutory deereee of divorce.
It is the contention of the defendant, that, where a complaint is filed in an action and a summons is thereafter issued and served, it is not such service as will give the court jurisdiction of the, parties, unless a copy of the complaint
“Failure to deposit a copy of the complaint is not jurisdictional, but is a mere irregularity.” Lime & Stone Co. v. Danley et al., 38 Utah, 231, 111 Pac. 652.
"The copy of the complaint is not for the court’s information or benefit, but for the information and .benefit of the defendant.” Reese v. District Court, 52 Utah, 520, 175 Pac. 602.
It must necessarily follow that failure to serve a copy of the complaint with the summons could in no way defeat or affect the jurisdiction of the court over either the subject-matter or the parties to the action.
Petition denied.