179 P. 831 | Mont. | 1919
delivered the opinion of the court.
Certiorari to the district court of Fergus county. The record discloses that on November 13, 1918, the relator brought his action against the defendant, who had left the state and become a resident of the state of Kentucky, to obtain a decree of divorce on the ground of desertion. Instead of service of summons by publication under section 6520 of the Revised Codes, personal service was had upon the defendant, as provided in section 6521.
“W. H. Myers, being first duly sworn, says': That I received the within summons on the 18th day of November, 1918, that I personally served the within summons on the 19th day of November, 1918, upon Myrtle D. Smith, the defendant named therein, by delivering a copy of said summons to her personally in the said county of Warren. That at the time when I served the within summons upon the said Myrtle D. Smith, and at the same place, I also served upon her a copy of the complaint upon which said summons was issued, by delivering said copy to her personally.
“W. H. Myers, D. S.”
Defendant having failed to appear in the action, her default was entered on December 31. On January 7 of this year, the court, Hon. Roy E. Ayers presiding, heard the evidence submitted by plaintiff, made its findings of fact and conclusions of law, and rendered and signed a decree granting him a divorce. On the same day, before the decree was entered and without notice to counsel, the court of its own motion amended its order granting the decree. The amended order is as follows: “This cause came on regularly to be heard this day, Mr. E. G. Worden appearing as counsel for plaintiff, defendant not appearing. The court now heard the proofs offered, the testimony of William G. Smith who was now duly sworn and examined on behalf of plaintiff, and the court being fully advised in the premises, thereupon it was ordered, adjudged and decreed that plaintiff have decree of divorce. It having come to the knowledge of the court, ex parte, that the court was without jurisdiction to grant the decree above ordered, for the reason that the plaintiff had not been deserted by the defendant for more than one year prior to his filing a complaint herein, praying for divorce on the ground of desertion, and the court being satisfied upon such information that further proof is necessary in the said case, it is hereby ordered that the said decree heretofore on this day made and signed in the ease be, and the same is hereby, ordered
It will be observed that the court in amending the original
This court pointed out in the early cases of Whitbeck v. Montana Cent. Ry. Co., 21 Mont. 102, 52 Pac. 1098, and Ogle
There may be a question whether the foregoing rule applies
Counsel for the respondents did not favor this court with a brief but made an oral argument at the hearing. He insisted that though the district court was in error in vacating the judgment for the reason stated in its order, the order should nevertheless be affirmed because upon the face of the-record the judgment if! void, in that it appears that the proof of service of summons was insufficient to give the court jurisdiction of the defendant, and in that the affidavit required by section 4(a) of the Act of the Extraordinary Session of the Fifteenth Legislative Assembly (Chap. 8, Laws Extra. Session, 15th Legislative Assembly, p. 17), showing that the defendant was not in
Nor do we think the omission to file the affidavit required by
The order is annulled.
Order a/n/mlled.