State ex rel. Topley v. District Court, 171 P. 273

State ex rel. Topley v. District Court

171 P. 273 | Mont. | 1918

MR. JUSTICE SANNER

delivered the opinion of the court.

Supervisory control to review an order of the district court of Ravalli county, refusing to set aside a decree of divorce entered by default. We state the facts substantially as conceded by respondents in their brief, to-wit: John W. Topley filed in said court his complaint for divorce against the relatrix, Mary J. Topley; he claimed residence in Montana, she being in New York; the complaint was weak and defective; the issuance of the alias summons was at least irregular; service or purported service was by publication and not personal; in due time the default of the relatrix was entered, and the decree rendered with*462out legal notice to her, actual or constructive; immediately upon learning of the facts she filed a motion to set aside the decree upon the grounds, mainly, that the court had no jurisdiction of the person of the relatrix or of the subject matter of the action, and that the decree was. procured through fraud practiced upon the court; this was supported by numerous exhibits and affidavits, accompanied by a proposed answer sufficient on its face; the motion was heard, and on January 23, 1918, was overruled.

Just why on such a state of facts — ignoring the detailed-[1] strength of relatrix’s showing- — the court refused to set aside the decree and open the default is to us incomprehensible. But the relatrix has an adequate remedy without resort to this most extraordinary of all legal proceedings. The order referred to is appealable; the time for appeal has not expired, and will not expire for yet a little while. No hardship peculiar to the case or different from that suffered by all appellants is presented, and the special interest in the state claimed as sufficient to warrant this interposition would justify a motion to advance. This proceeding will not lie unless there is no appeal or the remedy by appeal is inadequate (In re Weston, 28 Mont. 207, 72 Pac. 512; State ex rel. Carroll v. District Court, 50 Mont. 428, 147 Pac. 612); and we cannot permit it to be used as a convenience or shorter route to precedence over other causes equally entitled to our consideration.

For this reason the proceeding is dismissed at relatrix’s cost.

Dismissed.

Mr. Justice Holloway concurs. •Mr. Chief Justice Brantly, being absent, takes no part in the foregoing decision.