Beall v. Beall
| Decision Date | 30 October 1917 |
| Docket Number | No. 1039.,1039. |
| Citation | 24 Haw. 29 |
| Parties | DENISE MAHAN BEALL v. GRAFTON A. BEALL. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HEREAPPEAL FROM CIRCUIT JUDGE, FIRST CIRCUIT. HON. S. B. KEMP, JUDGE.
Syllabus by the Court
The technical law of default does not apply to an action of divorce and where there has been an ex parte hearing and a decree of divorce in favor of the libellant the default should be opened, the decree set aside and the defendant permitted to defend on the showing made in this case as set forth in the opinion, although the showing might not be sufficient in an ordinary action.
The libellee in a divorce case was served out of the jurisdiction of the court; a decree of divorce rendered against him on ex parte hearing; a motion to open the default and set aside the decree was promptly made, the motion being supported by affidavit showing that the libellee was anxious to defend and had cabled his attorney to appear for him, but owing to the temporary absence of his attorney libellee was not represented at the hearing; the affidavit also showed that the libellee denied nearly all the allegations of the libel and attempted to explain the others: Held, that the motion should have been sustained and it was an abuse of discretion to deny the same.
J. W. Cathcart and C. S. Franklin ( Thompson & Cathcart and C. S. Franklin on the brief) for libellant.
C. S. Davis for libellee.
The libellant, appellee here, filed in the circuit court of the first circuit on November 8, 1916, a libel for divorce from her husband, the libellee, appellant here, upon the sole ground of desertion alleged to have occurred on the 7th day of November, 1914. In said libel it is alleged that the “libellee is without the Territory of Hawaii, the exact whereabouts of which to your libellant is unknown, but that libellant is informed and believes, and upon information and belief avers the fact to be that said libellee is detailed on the U. S. S. ‘Yorktown,’ cruising near the southern coast of the State of California; that all mail matter for persons so detailed is directed care of and forwarded to the addressee by the postmaster at San Francisco, California, to whom the exact whereabouts of said Yorktown is from time to time communicated.” Thereupon the circuit judge made an order directing that copies of the libel, summons and order for service be made upon the libellee by mailing in a registered envelope sealed and properly stamped to the libellee on the U. S. S. Yorktown in care of the postmaster of the city and county of San Francisco, State of California, said registered envelope to contain thereon the words: “Return receipt demanded” “Deliver only to addressee,” and the address of the clerk as sender, and said order fixed Thursday, February 13, 1917, at nine o'clock a. m. as the day and hour for hearing. Pursuant to this order copies of the libel, summons and order for service were mailed as directed, and which the libellee received on board the U. S. S. Yorktown December 10, 1916. Thereafter a special appearance was made to this libel by the libellee, who, appearing specially therefor by his attorney C. S. Davis, Esq., filed a plea to the jurisdiction of the circuit judge upon various grounds based upon irregularities in the summons and order for service. Thereafter the libellant filed another libel against the libellee in the same court, alleging the same ground and the additional ground of extreme cruelty committed by certain acts therein alleged, and another order directing that service of the libel and summons thereon be made upon the defendant personally at San Diego, California, by the sheriff of San Diego county or other proper officer, was made by the circuit judge and service so made March 23, 1917. May 11, 1917, was named as the date for the hearing of the last libel. This last libel bears the exact docket number and register page as the former libel. There is nothing in the record showing that the first libel was discontinued, but the fact that it was not discontinued either before or after filing the second libel is inferable from the record before us. May 7, 1917, the libellee wrote to his attorney, C. S. Davis, Esq., and in his letter denied the charge of desertion, denied nearly all of the acts alleged to show cruel treatment by himself of the libellant, and attempted to explain those not denied. If the facts stated in his letter should be established they could be regarded as constituting a defense to the second libel filed against him as well as showing that he was then a United States naval officer on duty at sea and had no control of his movements while at sea. This letter was forwarded to his said attorney by mail but did not reach him until on or about the 22d day of May, 1917. On the 9th day of May, 1917, the libellee sent to his said attorney at Honolulu a cable asking him to appear and request delay and saying that he had written a complete traverse to the libel, evidently referring to the letter of May 7, before mentioned. This cablegram was received at the office of C. S. Davis, Esq., at Honolulu on the 10th day of May, 1917, but said Davis was then in Hilo, having left for Hilo the day preceding on business. This cable was taken to Hilo by the father of C. S. Davis and delivered to him on May 11, 1917, whereupon he immediately sent a wireless to the attorneys for libellant asking about the libel, but was informed by answer that the same had been heard and a divorce granted to the libellant. On May 11, 1917, the libellant appeared before the proper circuit judge, asked and was granted an order of default against the libellee, whereupon an ex parte hearing was had, evidence was heard on behalf of the libellant and a decree there and then entered divorcing the parties and awarding to the libellant the care of the two minor children, allowing the libellant counsel fees in the sum of one hundred dollars, allowing libellant seventy-five dollars per month for the support of her minor children, and fifty dollars per month permanent alimony for herself, payable monthly. May 18, 1917, the libellee by said attorney filed a motion to open the default and set aside the decree of divorce and permit the libellee to defend, stating therein the facts as to sending and receiving the said cablegram, and further showing in said affidavit that said attorney was expecting to receive by mail from the libellee a statement of the facts touching his defense and would file an additional affidavit setting forth the facts relating to such defense. Thereafter and on May 25, 1917, the libellee by his said attorney filed such additional affidavit in which was copied the statements heretofore referred to as made in the letter of libellee to his said attorney of May 7, 1917. It also appeared in the affidavit of said C. S. Davis that soon after filing the plea to the jurisdiction of the court by reason of irregularities in the summons that issued on the first libel and the order of service thereon he had a conversation with the senior member of the firm of Thompson, Milverton & Cathcart, who filed the said libel as attorneys for the libellant and that in such conversation said attorney for the libellant told affiant that he desired to take no chances with the aforesaid plea to the jurisdiction and that the...
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