Anderson v. Anderson

• Decision Date: 08 October 1918
• Citation: Anderson v. Anderson, 89 Or. 654, 175 P. 287 (Or. 1918)
• Parties: ANDERSON v. ANDERSON.
• Court: Oregon Supreme Court

175 P. 287

89 Or. 654

ANDERSON v. ANDERSON.

Supreme Court of Oregon

October 8, 1918

Department 1.

Appeal from Circuit Court, Multnomah County; C. U. Gantenbein Judge.

Divorce suit by Hannah F. Anderson against Albert J. Anderson. Order opening default was vacated, and defendant appeals. Affirmed.

On October 21, 1916, Hannah F. Anderson obtained a default divorce decree against the defendant, Albert J. Anderson having served the summons by publication. On January 30 1917, after consideration of affidavits of the parties pro and con, the court took off the default of the defendant and allowed him ten days in which to answer the plaintiff's complaint. The essence of the defendant's affidavit was to the effect that he had no actual notice of the pendency of this suit. The answer was not filed with the affidavit, but was deposited with the clerk on February 3, 1917. Three days afterward the court made the following order:

"Comes now the above-named plaintiff by her attorney in open court and moves that the order heretofore granted by this court setting aside the default in the above-entitled cause be stricken from the records and held for naught. And it appearing to the court, from a letter exhibited by plaintiff written by defendant, and dated the 5th day of August, 1916, and addressed to plaintiff, therein acknowledging notice of the divorce proceedings pending in this court, showing thereby that he had received notice thereof nearly three months prior to the hearing and granting of the decree in said cause, it is therefore ordered that said order heretofore granted setting aside said default in said above cause and allowing defendant to answer and file his cross-complaint in said cause, be and the same is hereby annulled, set aside and stricken from the records, and that the motion of defendant to set aside said default is denied."

The defendant appealed, assigning two grounds of error: First "that the court erred in the impromptu hearing held on the 6th day of February, 1917, wherein he accepted as genuine, without the introduction of testimony, a letter purporting to be written by said defendant to said plaintiff on the 5th day of August, 1916;" and, second substantially that the circuit court was in error in making the order at all.

George P. Lent, of Portland, for appellant.

BURNETT, J. (after stating the facts as above).

In opening the default the court operated under section 59, L. O. L., to the effect that within one year after the rendition of a decree the defendant against whom publication is ordered may be allowed to defend the action on application and sufficient cause shown. The result of this was to restore the cause to the control of the court so that it became lis pendens with all its incidents, just as much as if it had been appealed to the Supreme Court, reversed and remanded for further hearing.

It is well settled that any order or determination of a court, although it be a final judgment or decree, may be altered, modified, or reversed by the court making it, at any time during the term at which it is made. Deering v Quivey, 26 Or. 556 ( Deering v. Creighton) 38 P. 710; Ayers v. Lund, 49 Or. 303, 89 P. 806, 124 Am. St. Rep. 1046; Zelig v. Blue Point Oyster Co., 61 Or. 535, 113 P. 852, 122 P. 756; First Christian Church v. Robb, 69 Or. 283, 138 P. 856. The reason is based on the old common-law fiction that the whole term is considered as being but one period of time, all parts of which are ever present before the presiding judge, who makes of it but one transaction, with the condition that when it has lapsed, either by adjournment sine die or by operation of law, the whole matter has passed from the bosom of the court and beyond its control. This much is true only of final judgments or decrees fully disposing of the whole litigation. The cases of Reynolds v. Barnes, 76 Pa. 427, and Horner v. Hower, 39 Pa. 126, cited by the defendant, are both instances where the effort was to attack a final judgment in the court rendering it and that too long after the close of the term at which it was entered. Those...