55 N.W. 1095 | N.D. | 1893
This case comes to this court on an appeal from an order entered by the District Court of Cass County on the 23rd day of November, 1892, which vacated and set aside a decree of divorce granted by said court in said action on the 15th day of September, 1891, and dismissed the complaint in said action, with costs. On September 9th, 1892, on the petition of EmmaM. Yorke, the defendant and the respondent herein, an order was issued by the judge of said court, citing Louis A. Yorke, the plaintiff and appellant herein, to show cause why such decree should not be vacated. This order was served on M. A. Hildreth, Esq., who had acted as the attorney for plaintiff in procuring such decree. At the final hearing under such citation, the order was entered from which the appeal is taken. The petition upon which the order was granted is exceedingly voluminous. We state such of the ultimate facts, as alleged in the petition, as we deem necessary for a proper understanding of our rulings: Some time in 1889, appellant instituted an action for divorce against respondent in the District Court of Stutsman County, charging her with dissertion. To this action there w?is an appearance and answer filed, and, the case being thus at issue, the attorney for appellant wrote to the attorney for respondent, who resided in Philadelphia, saying: “Will advise you of further proceedings in the case when the same are taken.” That neither respondent nor her counsel ever received any notice of any further proceedings in said case. ' That on June 20th, 1890, by order of said court, other counsel were substituted as attorneys for appellant in said case, and on the same day such substituted counsel procured an order dismissing said action without prejudice; and immediately thereafter this action was brought, in Cass
The attorney for the appellant, M. A. Hildreth, Esq., appeared specially to oppose the motion to set aside .the decree, and claimed that the court had acquired no jurisdiction of appellant in the matter because the motion papers were served upon the attorney, instead of the party. He filed his affidavit, setting forth that service might have been made upon the party in the state, and that the relation of attorney and client no longer existed between himself and Louis A. Yorke. This point is practically ruled against appellant in Beach v. Beach, 6 Dak. 371, 43 N. W. Rep. 701. We indorse what is there said, and need not repeat it here. We may add, however; that, granting that the relation, powers, and duties of an attorney cease upon entry of final judgment, yet it is upon the ground that the judgment and decree, as entered in this case, were not final, that the application of respondent was made. This application was not by original action in the same or another court, but by motion in the very case in which the decree was entered. While the court could entertain a motion affecting the decree, it cannot, in any proper sense, be said that the decree was final. See, also, Miller v. Miller, 37 How. Pr. 1; Merriam v. Gordon, 17 Neb. 325, 22 Ñ. W. Rep. 563. The notice to show cause was properly served upon the attorney of record in the case. It was alleged in the notice that the affidavit upon which the order of publication of summons was based was insufficient in form, as not showing what, if any, diligence had been used to find the defendant in this state. Under the authority of Beach v. Beach, supra, that would be true. Indeed,
But, when the respondent came into court with her motion to set aside the decree, she made no special appearance, nor did she attack the decree on the ground of want of jurisdiction only, but also upon the further gi'ounds of fraud and deceit practiced upon herself and upon the court, and the insufficiency of the evidence to support the decree. The petition asked that the entire proceedings be set aside, or, if that could not be done, that she be allowed to come in and defend. This was a voluntary and un] qualified submission to the jurisdiction of the court, generally, and, although made after judgment, was a waiver of all defects in the process. Elliott v. Lawhead, 43 Ohio St. 171, 1 N. E. Rep. 577; Leake v. Gallogly, (Neb.) 52 N. W. Rep. 824; Grander v. Rosecrance, 27 Wis. 488; Anderson v. Cobum, Id. 558; Insurance Co. v. Swineford, 28 Wis. 257; Carpentier v. Minturn, 65 Barb. 293;
It is contended, however that decrees in actions for divorce .form a clear exception to the general rule; that in this class of cases, reasons of public polity, the interests of the state, as well the irreparable wrong that may be done to innocent third parties in cases of remarriage, alike demand that divorce decrees should not be, subject to attack in this manner. It is freely conceded that courts have sometimes so held. Perhaps the strongest case in the books is Parish v. Parish, 9 Ohio St. 534. That case did 'not arise on motion to vacate, but under the old practice of bill in equity filed at a subsequent term. There was a demurrer to the bill, and the court said: “For the honor of human nature, it is to be hoped that the facts alleged in the petition in regard to the procuration of the decree are not true in fact, though, for the purpose of the demurrer, they are to be taken as admitted. Indeed if a case could be supposed in which a decree a vinculo, by a court having jurisdiction o,ver person and subject matter,
Modified and affirmed.
Corliss, J. I refrain from expressing any opinion whether the appearance validates the decree, so far as jurisdiction was concerned, or whether it conferred jurisdiction only from the date of the appearance.