Clopton v. Clopton

• Decision Date: 03 January 1902
• Citation: 88 N.W. 562,10 N.D. 569
• Court: North Dakota Supreme Court

88 N.W. 562

10 N.D. 569

WILLIAM C. CLOPTON v. JOSEPHINE CLOPTON

Supreme Court of North Dakota

January 3, 1902

Appeal from District Court, Morton County; Winchester, J.

Action by William C. Clopton against Josephine Clopton for divorce. From an order setting aside the vacation of a judgment for divorce entered in favor of plaintiff, defendant appeals. Affirmed.

Affirmed.

E. C Rice and Cochrane & Corliss, for appellant.

Newman Spalding & Stambaugh, for respondent.

OPINION

WALLIN, C. J.

The facts presented by the record in this case are as follows: On the 18th day January, 1899, a complaint was filed by the plaintiff in the district court of Morton county, alleging a cause of action against the defendant for a divorce from the bonds of matrimony upon the ground of cruel and inhuman treatment. Later, and on the 26th day of the same month, one James E. Campbell, a practicing attorney residing in said county of Morton, filed in said action a paper purporting to be the answer of the defendant to the plaintiff's complaint, which answer admitted that the plaintiff was a resident of this state, and denied the allegations of cruel and inhuman treatment, as alleged in the complaint. On the 2d day of February, 1899, the said James E. Campbell and the plaintiff's attorney appeared in open court, and stipulated that the court should appoint a certain person named by them as referee to take the testimony in the action and report the same to the court; whereupon the district court by its order appointed the referee agreed upon, and upon the same day said referee filed his report, which included the testimony of the plaintiff, and whereby it appeared that the defendant offered no testimony before said referee. Later, and upon the same day, findings were filed by the court, and a judgment was entered in the action in favor of the plaintiff, whereby the parties were divorced from the bonds of matrimony. It further appears that the defendant on the 23d day of July, 1900, appeared by one of her present attorneys, E. C. Rice, Esq., and applied for and obtained an order from said district court requiring the plaintiff to show cause on the 25th day of August, 1900, why said judgment of divorce should not be vacated and set aside, upon the ground that said James E. Campbell, who prepared and served the answer to the complaint did so without authority from the defendant. The final hearing upon the order to show cause occurred on the 30th day of November, 1900, at which hearing the parties were represented, respectively, by their attorneys, and affidavits and counter affidavits were submitted upon the issue of fact raised by the order to show cause, viz. whether the said James E. Campbell was or was not authorized to appear and file an answer in the action in behalf of the defendant. After hearing counsel, and considering the evidence submitted upon the motion, the district court entered an order dated November 30, 1900, which embraced the following language: "The court finds that the defendant never, directly or indirectly, authorized the employment of James E. Campbell to enter an appearance in this action on her behalf. The court also expresses it as its belief, from the evidence and from the statements of counsel, that Mr. Campbell acted in good faith, believing that he had authority to appear; whereupon the decree and judgment entered in the above-entitled action is set aside, and the defendant is given thirty days in which to file an answer, and the case to stand for final disposition the same as if no judgment or decree had heretofore been entered." It further appears that the plaintiff, on the 22d day of January, 1901, applied for and obtained from said district court an order requiring the defendant to show cause before that court on the 25th day of January, 1901, why the above-quoted order vacating the decree of divorce should not be set aside and annulled on the ground that the same was procured by deceit and fraud practiced upon the court. The last-mentioned order to show cause came on to be heard in the district court on the 30th day of January, 1901, and at said hearing both parties were represented by counsel, and affidavits were submitted on both sides upon the issues presented by the order to show cause; whereupon said court, after hearing counsel and considering the proofs submitted at such hearing, entered an order in the action, which, so far as material, declares that the order of November 30, 1900, "was procured by and through the fraud and deceit practiced by the defendant upon the court, and that said order was improvidently made." Said order further recited that said James E. Campbell was defendant's attorney in the action, and did, when the answer was filed, have authority to file an answer in defendant's behalf. Said order further directed that the vacating order of November 30, 1900, be set aside and annulled, and that the judgment of divorce entered on the 2d day of February, 1899, "remain and be in full force and effect as if said order of November 30, 1900, had not been made." From the order dated January 30, 1901, setting aside the former order and reinstating the judgment, the defendant has appealed to this court.

In this court it is contended by counsel for the appellant that the order appealed from must be reversed, for the reason that the district court, under established principles of law and practice, was devoid of lawful authority to make the order and this for the reason, as counsel argue, that the questions involved and decided by the order appealed from had been previously fully adjudicated by the district court upon the order to show cause obtained by the defendant, and which culminated in the order of November 30th vacating the judgment. In support of this proposition, the appellant's counsel argue that the ultimate question presented to the district court for solution by the two orders to show cause was identical, viz. one of jurisdiction in the district court over the person of the defendant, and that the pivotal fact to be determined upon both applications to the court below was whether the attorney who assumed to represent the defendant in the action, and who filed an answer to the complaint in her behalf had or had not authority to do so; and, upon the assumption that these premises are made manifest by the record, counsel proceed to the conclusion that the question of jurisdiction is res judicata, and therefore cannot be relitigated upon the last order to show cause (that obtained by the plaintiff), for the reason that it was fully adjudicated upon the order previously obtained by the defendant. But we think this postulate of counsel is fairly debatable. From our standpoint the record develops many dissimilar features in the two applications for relief to the district court. Upon the first order to show cause the defendant attacked a final judgment entered in the district court, and did so solely upon jurisdictional grounds. Upon the second order (that obtained by the plaintiff), an interlocutory application was made to the district court to set aside an order in the action, which order plaintiff claimed was obtained by means of...