369 P.2d 347 | Kan. | 1962
The opinion of the court was delivered by
This was originally a divorce action. The defendant appeals from an order of the trial court overruling her motion to vacate the judgment entered therein.
On March 25, 1959, plaintiff (appellee) Robert A. Woodward filed his petition for a divorce in the district court of Geary county. Service of summons by publication was made upon defendant, as provided by our statutes. The answer day was May 7, and on that day, although she had consulted her California and Massachusetts attorneys, defendant appeared specially pro se and filed a demurrer (G. S. 1949, 60-705, First) entitled “Special Answer,” wherein she stated she was appealing specially to challenge the jurisdiction of the court over the parties and the subject matter of the action on the ground the plaintiff was not a resident of Kansas. Hearing on defendant’s special answer was set by the trial court for June 12, and defendant was so notified by registered mail. Notice was received by defendant on June 5, and on June 8 she filed an affidavit in support of her special answer but made no appearance at the hearing, either in person or by counsel.
The trial court, after hearing the evidence, overruled defendant’s special answer and found that the court had jurisdiction over the parties and the subject matter of the action. On July 3, the defendant having entered no general appearance, and being in default, the trial court called the case to trial, and after hearing the evidence granted plaintiff a decree of divorce. Defendant had knowledge on July 15 of the granting of the decree. On November 5, 1960, approximately sixteen months later, defendant filed a motion in the action under the provisions of G. S. 1949, 60-3007, Third, to vacate the decree of divorce because of irregularities practiced by plaintiff in obtaining the judgment.
Defendant contends the basic question on appeal is whether a default judgment can be rendered without notice to a defendant after his demurrer or special answer challenging the jurisdiction of the trial court has been overruled and no further appearance, either
Defendant maintains that plaintiff failed to comply with rules 48 and 49 of our court. (G. S. 1949, 60-3827.) All that needs to be said on this contention is that the mentioned rules apply only when an appearance of record has been made by counsel for a party in the action, and have no application to a special appearance ques
Inasmuch as defendant has failed to make it appear there were any irregularities in obtaining the decree of divorce on July 3, 1959, the trial court did not err in overruling her motion to vacate the judgment. The judgment of the trial court is affirmed
It is so ordered.