16 N.M. 98 | N.M. | 1911
OPINION OF THE COURT.
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.