166 P. 923 | Idaho | 1917
On Nov. 24, 1915, James J. Black commenced an action for divorce against respondent in the district court for Shoshone county. An order for personal service of summons without the state was procured, and summons was
The record in this case, to say the least, is in a hopeless state of confusion, but we must indulge the presumption that all of the proceedings of the trial court were regular, and although the record is silent, so far as the setting aside of the clerk’s default is concerned, such must have been the result
That the plaintiff had died in the meantime would not operate to deprive the court of its right to set aside its void judgment, for the reason that there were property rights involved. And while there are cases to the contrary, the great weight of authority supports the rule that, if the property interests of the survivor are involved in the proceeding, the decree may be assailed, if it is for any reason void or voidable. The authorities are collected in the notes to the following cases: Lawrence v. Nelson, 113 Iowa, 277, 85 N. W. 84, 57 L. R. A. 583; Dwyer v. Nolan (Nolan v. Dwyer), 40 Wash. 459, 111 Am. St. 919, 5 Ann. Cas. 890, 82 Pac. 746, 1 L. R. A., N. S., 551; McElrath v. Littell, 120 Minn. 380, 139 N. W. 708, 44 L. R. A., N. S., 505; Leathers v. Stewart, 108 Me. 96, Ann. Cas. 1913B, 366, 79 Atl. 16; Wood v. Wood, 136 Iowa, 128, 125 Am. St. 223, 113 N. W. 492, 12 L. R. A., N. S.,
The order appealed from is affirmed. Costs awarded to respondent.