207 P. 75 | Nev. | 1922
Lead Opinion
This is a suit to set aside a decree of divorce.
The appellant’s opening brief contains a concise statement of facts, which, with some slight changes, we will adopt.
The respondent, Gladys M. Moore, as plaintiff, on the 1st day of March, 1920, filed in the district court of the First judicial district of the State of Nevada, in and for Douglas County, a complaint against O. E. Moore, as defendant, for divorce, and thereupon summons was issued, which said summons and complaint on said last-named date were served upon said O. E. Moore in Douglas County by the sheriff thereof. On the 2d day of March, 1920, said O. E. Moore, through his attorneys, caused to be filed to said complaint his answer upon the merits, to which said answer there was annexed his power of attorney to said attorneys executed before the clerk of said court on said 1st day of March, 1920. Thereafter, on the 2d day of March, 1920, said action was tried and decided by said court, and pursuant thereto findings were filed and decree of divorce was entered in favor of plaintiff and against the defendant.
On the 16th day of April, 1920, Leonard B. Fowler, the duly elected, qualified, and acting attorney-general of the State of Nevada, filed in the First judicial district court of the State of Nevada, in and for the county of Douglas, in behalf of the state, a complaint against Gladys M. Moore, known as Gladys M. Fairbanks, and O. E. Moore, known as Owen E. Moore, defendants, and thereupon summons was issued in said action, which said complaint prayed for judgment and decree in favor
Thereafter, on the 28th day of April, 1920, the appellant, by and through its relator, filed in said action his affidavit for an order for the publication of the summons so issued, and thereupon the court signed an order for the publication thereof, and pursuant to said order, on the 3d day of May, 1920, in the county of Los Angeles, State of California, said summons, together with a certified copy of said complaint, was personally served upon Gladys M. Moore, known as Gladys M. Fairbanks, by a deputy sheriff in the county of Los Angeles, State of California.
And thereafter, on the 11th day of June, 1920, said Gladys M. Moore, known as Gladys M. Fairbanks, caused to be served and filed in said district court her motion and notice of motion for an order, judgment, and decree, vacating, annulling, and declaring void said order for the publication of summons, and quashing the service of summons upon her, which said motion was heard by the court on the 27th day of November, 1920, and thereupon argued and thereafter briefed by respective counsel; and theretofore having been submitted, said motion on the 25th day of June, 1921, was decided by the court in favor of said Gladys M. Moore, respondent herein, and in accordance with said decision the court entered its order as follows:
*79 “It is the order of this court that the order for publication of summons heretofore made in this cause be and the same is hereby revoked and annulled and any and all service of summons made upon the defendants or either of them by reason of said order for publication is hereby quashed and set aside.”
To which said order the plaintiff duly excepted, and it is from this order that this appeal is prosecuted.
The main question involved is the power or authority of the attorney-general of the State of Nevada to institute and maintain this action. On account of the importance of this question we will deal with it directly, passing by all other contentions made by the respondents, except the objection that the order appealed from is not an appealable order. We deem this objection settled adversely to respondents in the case of Tiedemann v. Tiedemann, 35 Nev. 259, 129 Pac. 313, and hold that the order of the lower court revoking and annulling the order for publication of summons and quashing the service thereof is an appealable order.
The attorney-general contends that, as the chief law officer of the state, he is empowered to intervene in its behalf in a divorce suit, and is likewise empowered, on relation of the state, to maintain the present action to vacate and set aside the decree in the case of Moore v. Moore. He claims that the office of attorney-general was clothed with this power at common law, and that, as it is a constitutional office in this state, it retains all of its common-law powers and duties.
He contends further that his authority in this respect is also derived from the statute.
We are in accord with his contention that the office of attorney-general in this state has all of the powers belonging to it at common law, in addition to those conferred by statute; but we are of the opinion that the attorney-general had no power to intervene in a divorce suit, or to bring an independent action to set aside a decree of divorce on behalf of the government under the common law.
The common law which we received in this country from England was the common law as it existed when this jurisdiction still belonged to the ecclesiastical courts, and it has been held by this court that the law of marriage and divorce, as administered by the ecclesiastical courts, is a part of the common law of this country, except as it has been altered by statute. Wuest v. Wuest, 17 Nev. 217, 30 Pac. 886.
By an act of Parliament passed in 1857, and by its provisions made effective in 1858, known as the Matrimonial Causes Act, the jurisdiction of the ecclesiastical courts over divorce was transferred to a court established by the same act and called “The Court for Divorce and Matrimonial Causes,” 20 and 21 Vict. c. 85.
Subsequently, in 1860, this.act was amended so as to permit the queen’s proctor, under the direction of the attorney-general, and by leave of the court, to intervene in divorce suits for the purpose of preventing collusion. 23 and 24 Vict. c. 144. This amendment is, of course, no part of the common law received in this country, and, even if it were, it would not enable the attorney-general to intervene, for obviously it only invests the attorney-general with discretion to direct another officer to intervene. If the attorney-general was authorized under the common law of England to intervene in divorce suits, it is evident that the act of 1860 divested him of this power and conferred it upon another. But, notwithstanding an extensive research, aided considerably by the able and exhaustive briefs of counsel, we have been unable to find any evidence of authority on the part of the attorney-general to participate on behalf of the government in divorce suits in the ecclesiastical courts having been exercised or claimed in England. If there is any decision recognizing or declaring
The decisions from the different states of the Union which hold that the office of attorney-general is clothed with all its common-law powers do not generally attempt to specify them. In People v. Miner, 2 Lans. (N. Y.) 396, however, the court enumerates a number of the common-law powers of the attorney-general, and it is to be noted that the right claimed does not appear in this enumeration. Nowhere in the excellent works of Mr. Bishop and Mr. Nelson on Marriage and Divorce, or in any of the books of the law-writers on this subject which we have examined, has power of this character been stated to belong to the attorney-general, at common law. Some of the states, for example, Washington, Oregon, Indiana, and Kentucky, have adopted legislation authorizing and requiring the district attorneys of the respective states to appear and defend in divorce suits, in so far as it' may be necessary to prevent fraud and collusion. This legislation in itself indicates a conviction in these states that without it the state could not intervene in divorce suits by any of its law officers, either under the common law or by statute. In this regard the attorney-general insists that the duties and powers granted district attorneys by such legislation are cumulative only, arid independent of the duties and powers of the attorney-general of the several states derived from constitutional, statutory, and common-law sources. If the power exists under the common law, or under some general statute, why has it never been exercised, either in England or this country? It is urged that there has never been such a flagrant case as this before. This is a broad statement, but it seems to us that a power so potential for the preservation of the general welfare ought to be exercised whenever there is reasonable ground to believe that there is an attempt to dissolve the marriage relation contrary to public policy. While it is within the range of possibility, it is
The power of a law officer of the state to intervene in its behalf in a divorce suit, if it exists at common law, has been of no benefit to the public either in this country or in England, the home of the common law. As no evidence of any rule of the common law, or practice of the ecclesiastical courts connecting the attorney-general of England with authority in divorce suits on behalf of the government can be found, we must hold that such power does not exist, and it remains to be determined whether it has been conferred on the attorney-general of this state by statute. We must also answer this question in the negative. There is no special statute in this state conferring authority on any law officer to intervene in divorce suits, as in the states mentioned.
Section 4133 of the Eevised Laws of Nevada is the statute which it is asserted empowers the attorney-general with the authority he claims over divorce suits. There is no other statute which gives any ground for argument in this regard. The section reads:
“Whenever the governor shall direct, or in the opinion of the attorney-general, to protect and secure the interest of the state, it is necessary that a suit be commenced or defended in any court, it is hereby made the duty of the attorney-general to commence such action, or make such defense; and such actions may be instituted in any district court in the state, or in any justice court of the proper county.”
The basis of the attorney-general’s claim of power conferred by this statute rests in the peculiar nature of a divorce suit, presenting as it does a triangular aspect as to parties. The state, or sovereign, is deeply concerned in maintaining the integrity and permanence of
“In every enlightened government,” said the court in Noel v. Ewing, 9 Ind. 37, “it [marriage] is preeminently the basis of civil institutions and thus an object of the deepest public concern. In this light marriage is more than a contract. It is not a mere matter of pecuniary consideration. It is a great public institution, giving character to our whole civil polity.”
Speaking of this interest of the state in Campbell’s case, decided in Maryland in 1829, Chancellor Bland said:
“A contract of marriage is, in many respects, so highly important in its nature as not only to involve the interests and happiness of the immediate parties, and to require the free consent of a man and woman who have a perfect bodily and mental capacity to contract; but it is a contract to which society is a party, and in which it has a deep interest.” 2 Bland, 209, 235, 20 Am. Dec. 360, 376.
In the Supreme Court of the United States, the court', speaking through Mr. Justice Field, said:
“Other contracts may be modified, restricted, enlarged or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution, in the maintenance of which in its purity, the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.” Maynard v. Hill, 125 U. S. 190, 8 Sup. Ct. 723, 31 L. Ed. 654.
The foregoing excerpts of decisions deflect the universal judicial view of the importance of the marriage relation to the state. This court has expressed the same view. Danforth v. Danforth, 40 Nev. 444, 166 Pac. 927; Ex Parte Sheldon, 44 Nev. 268, 193 Pac. 967.
While the state, from considerations of public policy, is unquestionably interested in maintaining the marriage status, we do not think an interest in this sense
“The attorney-general shall prosecute and defend all actions in the supreme court, in which the state shall be interested, or a party; and shall also, when requested by the governor, or either branch of the legislature, appear for the people of this state in any other court or tribunal, in any cause or matter, civil or criminal, in which the people of this state may be a party, or interested.” 1 Howell’s Mich. Statutes (2d ed.) sec. 612.
Yet, notwithstanding this statute, the Supreme Court of Michigan has determined in Baugh v. Baugh, 37 Mich. 59, 26 Am. St. Rep. 495, that none but the parties can intervene in a divorce suit. This was a suit in which the infant children of divorced parties, by their maternal grandmother, filed a bill to set aside the divorce and to have a second marriage of the father declared null and void. The court said:
“The jurisdiction over divorce is purely statutory, and the legislative authority has not seen fit to allow any but the parties to intervene in such suits. The husband and wife are the only persons recognized as parties. * * * It is for the legislature to determine to what extent public policy requires the power of intervention to be vested in any but the parties to divorce suits. * * * In the meantime the courts have no right to sanction any such intervention. It is expected of all divorce courts that they will be vigilant in examining- the circumstances of all cases before them, and not allow any decree without a full scrutiny. The means furnished for this purpose are adequate for most cases.”
But in the instant case, if the attorney-general’s contention should be recognized, his right to intervene or bring an independent action to set aside a decree of divorce is, by this general statute, less restricted than that of an ordinary party in interest. One who is a party in the ordinary sense of the word is not given the right to intervene in an action under any general statute, but by special statute, limiting the time of such intervention, and outlining the procedure. When the legislature has- been careful to make special provisions for intervention in cases of pecuniary importance, how can it be inferred that it intended to bestow upon the attorney-general, by the general statement, “interest of the state,” in section 4133, the right to intervene or attack a divorce decree, at his option, when the consequences might far transcend any pecuniary considerations ?
That the district attorneys of the counties of the state have not construed this statute as conferring authority upon the attorney-general to appear for the state in divorce proceedings may be inferred from the fact that they have never deemed it improper to represent a husband or wife in a divorce proceeding. We apprehend that the district attorneys would not have assumed this position in opposition to the state’s interest, if they were of the opinion that in such a suit they might at any time be confronted by the chief law officer of the state representing its interests. The spectacle of
As far as we can inform ourselves, the present attorney-general is the first one to construe the statute as conferring authority on that official in divorce suits. If, as he contends, it clothes him with authority, is it not his duty to investigate every divorce suit brought in any of the seventeen jurisdictions in this state, to the end that fraud and collusion be not practiced on the court? Under the present state of the law, could this duty be effectively performed? No provision of law is made for the service of summons in a divorce suit upon the attorney-general. The clerks of the district courts, in whose offices divorce suits are filed, are under no legal obligation to give him notice of the filing of such a suit. Is it not reasonable to assume that, if the legislature had intended to charge the attorney-general with any duty in divorce suits, it would have provided some method of giving him notice of the filing-Of such a suit, to enable him to effectively discharge his duty?
The word “interest,” as employed in section 4133, must be taken, in its common acceptation, as relating to the interest of a party in the ordinary sense of the word, and, as so construed, cannot be held to include the peculiar interest which the state has in the matter of granting a decree of divorce.
Section 4133 names the general duties of the attorney-general, and is merely a statutory expression of his common-law powers, which, as we have seen, does not embrace the power asserted.
It would result in an unwarranted extension of this opinion to analyze the cases cited and discussed by the attorney-general which he claims support his contention that he can maintain this action in the name of the state. The decisions referred to have no analogy with the present case. In these decisions the attorney-general’s right to maintain the particular action was
But notwithstanding the fact that the legislature has not empowered the attorney-general or the district attorneys to appear for the state in divorce suits, its interest is not therefore unrepresented. In divorce suits the court represents the state’s interests throughout the proceedings, either in the presence of a statute authorizing some law officer to appear, or in the absence of such a statute. Yeager v. Yeager, 43 Ind. App. 313, 87 N. E. 144.
In Danforth v. Danforth, supra, this court said:
“As said in Ribet v. Ribet, 29 Ala. 348, actions of this nature are of a triangular sort, and such a cause is never concluded as against the court, and it may and usually does satisfy its conscience regardless of the pleadings.”
Again, in Ex Parte Sheldon, 44 Nev. 268, 193 Pac. 967, it was said:
“The court represents this interest of the state in divorce actions, and is in duty bound to scrutinize the testimony and proceedings with more care than in ordinary civil actions, to the end that collusion of the parties may not effect a dissolution of the marriage relation, when the real facts of the case, if known, would forbid it.”
It is a doctrine of general acceptance that the court represents the interest of the state in divorce suits. Baugh v. Baugh, supra; Powell v. Powell, 80 Ala. 595, 1 South. 549; Rehfuss v. Rehfuss, 169 Cal. 86, 145
“The judge, sitting in a divorce cause, deems himself under a sacred obligation to look after the interests of all who cannot be present, yet who may be prejudiced by the sentence prayed. And establishing the j ustice of the plaintiff’s complaint, not merely as between the parties of record, but as between them and the community, including persons specially interested yet not before the court, is what is frequently termed satisfying the conscience of the court.” Section 496.
Again, in section 663, Mr. Bishop says:
“The public, which we have seen to be a party in all divorce suits, occupies a unique position, sometimes embarrassing to the court. It does not ordinarily appear by counsel, and when without counsel does not plead. As against' this party, when only thus represented by what is called the conscience of the court, the plaintiff is entitled to the decree on his case being duly and fully proved. But this party, unlike the others, never loses a right by laches; and so, whenever a defense comes out in the evidence, whether alleged or not, it is fatal to the proceedings. A maxim in these suits, therefore, is that a cause is never concluded as against the judge; and the court may, and to satisfy its conscience sometimes does, of its own motion, go into the investigation of facts not contested by pleadings.”
And in section 664, he says:
“The limit to the right of the public to be protected while thus disregarding the just and common practice of the court cannot be precisely defined by rule. The judge, keeping in view the precedents, with his ‘conscience’ always awake, shall see that while the record parties are not deprived of the justice of the law, the*89 public good, which suffers from every dishonest divorce, and from every one not as well within the spirit of the statute as its terms, is not sacrificed. A rule more exact than this does not appear to be in the nature of the case possible.”
It is evidently the opinion of Mr. Bishop that the duty of the court to represent the state’s interest in divorce suits is exclusive, except in those states' where the prosecuting officer is charged by statute with a like duty, for in section 498 he states:
“It (a divorce suit) affects in a sipecial way the interests of the entire community, and the separate private interests of a considerable number of third persons not nominally parties. For the protection of those interests, the judge assumes that the. public is a party, not in the sense of either asking or opposing the divorce, but as seeking justice for itself and for all interested private persons who are not before the court; and he looks after those interests as far as his other functions of administering judicial justice permit. In a few of the states, the prosecuting officer appears in the divorce cause for the protection of those interests, but such is not the common course in our tmbunals.” (The italics are ours.)
It is contended by the attorney-general that the allegations of the complaint charging that the divorce suit was entered and the decree obtained in pursuance of a fraudulent and collusive scheme concocted and consummated by the respondents and those acting with them, whereby the j urisdiction of the court was wrongfully invoked, are admitted by the motion to the order for publication and service of summons, and therefore manifest, and appalling injustice will be permitted against the sovereign state, if he be not allowed to maintain this action in its behalf. Be that as it may, we cannot legislate a remedy. Until the legislature acts and empowers the attorney-general, or other officer, to represent the state’s interest in divorce suits, the duty
“In the best circumstances, justice will sometimes miscarry, but this is not peculiar to divorce cases, and it will not do to resort to unauthorized measures to redress legal misfortunes or wrongs. It would not be desirable, in order to get rid of some unjust judgments, to destroy the force of judgments generally, and allow them to be attacked by third parties where the legal rules which have been established to determine their effect have not permitted it.”
As the attorney-general had no authority to institute this action, it follows that the order appealed from should be affirmed.
It is so ordered.
Rehearing
ON Petition for Rehearing
Rehearing denied.
