Weaver v. Weaver, 16 N.M. 98

Weaver v. Weaver

16 N.M. 98 | N.M. | 1911

OPINION OF THE COURT.

ABBOTT, J.

We have first to decide whether this cause is properly here on appeal, and, if we consider that it is, then, whether the action of the District Court in vacating the decree of divorce shall be approved. Although it is claimed, in the brief for the appellee,, that the judgment of the District Court granting a divorce was void, the defendant has, apparently, treated it as voidable rather than void, since in her motion to have it set aside she has gone beyond the averments necessary to sustain it ánd set out matter which, she says, would constitute a defense on the merits, and asked to be allowed to answer after the vacation of the judgment. By that she submitted her person to the jurisdiction of the court, and, while we are not prepared to hold, as counsel for the appellant contend, that she thereby “cured, ratified and validated the decree” which she was asking to have set aside, we,think she might fairly be held to have precluded herself from claiming that it is void for want of jurisdiction of her person, and, indeed, to have consented that the court have jurisdiction of the cause. B. Colo. Sanitorium v. Van Stone, 14 N. M. 437; Atkins v. Disintregating Co., 18 Wall. (U. S.) 298; Hill v. Mendenhall, 21 Wallace 453; Grantier v. Rosecrance, 27 Wis. 488; Burnett v. Corgan, 26 Kas. 104; Shields v. Thomas, 18 Howard, (U. S.) 259; Henry v. Henry, 87 N. W. 522 (S. Dak.) But, independent of that, we are of the opinion that there is nothing apparent of record to show that the judgment was void. That the court had jurisdiction of the subject matter is not questioned. It was a court of general jurisdiction, with power to grant divorces to persons who had been residents of the Territory for a year next before instituting proceedings for divorce. “The residence of plaintiff, and not that of defendant, gives jurildiction in divorce cases, although service of process is constructive.” 14 Cyc. 588. See, also, 17 Cent. Dig. Title Divorce; secs. 1431-3, C. L. 1897.

1 2 It could obtain jurisdiction of the person of a nonresident defendant for the purpose of granting a divorce through publication of notice based on an affidavit as prescribed by law. The affidavit filed in this cause conforms to the requirements of the statute on the subject, in substance, so far as the record shows. The defendant objects to it that it did not state the street address in Rochester, New York, of the defendant, and did not state that any means had been taken to ascertain it. But the statute does not require that excuses shall be made unless there is a failure to state the residence of the defendant, and the residence was given as Rochester, New York, which made the affidavit complete in form in that particular. It is also objected that the affidavit could not properly be made by the plaintiff’s attorney merely for the reason that the plaintiff was not in the county. But the statute allows that. Laws 1901, ch. 62, sec. 22, .sub-sec. 8; C. L. 1897, see. 2685, sub-sec. 48. In addition, an order was made by the court directing publication. That the affidavit was carelessly drawn and should have been more explicit, and that the same is true of the complaint, need not be denied, although the defendant seems to have had no difficulty in understanding the allegations of the complaint well enough to-deny each of them specifically in her motion to vacate the judgment. But it is not until we get Information from outside of the record-that we have any ground for bel-ieving that the judgment was voidable and might have been properly vacated on a motion seasonably made. The essential distinction between void jugdments and those merely voidable must not be disregarded. '“In any case where the court has jurisdiction of the subject matter of the action, and the parties are before it by due service of proper process, the jurisdiction is never ousted by the erroneous exercise of the power which it confers. and the judgment in the case, though it may be marked by error which will cause its reversal by a higher court, is not for that reason void.” Black on Judgments, (2nd ed.) secs. 170, 244. For ordinary cases, at least, the time Avithin which a judgment can be vacated, is limited. If the court rendering a judgment has terms, its control of the judgment is usually limited to the term in which it was rendered. Bronson v. Schulten, 104 U. S. 410; Grames v. Hawley, 50 Fed. 319. But in this jurisdiction, in view of the 'provisions of sec. 2875, C. L. 1897, that the district courts in several counties “shall be at all times in session,” for the numerous purposes named in the statute, it can hardly be said that there are terms of court, except for purposes connected with jury trials. Territory v. Armijo, 14 N. M. 202, 210. That condition may, possibly, have the effect of limiting the literal meaning of Chap. 26, Laws of 1905, fixing a limit of sixty days for setting aside a judgment rendered on default “out of term time.” But C. L. 1897, sec. 2685, sub-sec. 137, plainly applies to all judgments, and provides that they may be set aside for irregularity at any time Avithin one year after rendition. In this case that limit had long been passed when the district court made the order to vacate the judgment. We do not wish to be understood to hold that a judgment which is absolutely void can not in any case be declared void by the court which rendered it, after one year from the time of its rendition; but, as we have said, the judgment now in question was not void, but at most only voidable at the time the order to vacate was made. That being the case, the judgment was final. The authority of Phillips v. Negley, 117 IJ. S. 665, fully applies. The District Court was without jurisdiction to vacate the decree, and the appeal from its action is properly here under the provisions of the Organic Act, p. 43, C. L 1897, and ch. 57, Laws of 1907, and should be sustained. The motion to dismiss the appeal is denied, and the judgment of the District Court vacating its former judgment is reversed.