Cook v. Cook

• Decision Date: 27 October 1941
• Citation: Cook v. Cook, 167 Or. 474, 111 P.2d 840 (Or. 1941)
• Parties: COOK <I>v.</I> COOK
• Court: Oregon Supreme Court

167 Or. 474

111 P.2d 840

COOK

v. COOK

Supreme Court of Oregon.

Argued on the merits at Pendleton October 27, 1941.

Motion to dismiss appeal denied April 1, 1941.

Reversed November 18, 1941.

Divorce — Death — Property rights

1. Where the consequences of a divorce affect the property rights of the parties to the suit, the death of one party or both parties does not affect the right of the unsuccessful party or his or her representative to institute vacation proceedings.

Appeal and error — Setting aside judgment

2. An order merely setting aside a former judgment and permitting the defendant to answer may be reviewed on appeal from the final decree and not otherwise.

Appeal and error — Setting aside judgment

3. Where wife, after death of husband, procured an order vacating default divorce decree obtained by husband solely to secure property owned by husband at his death, and the state intervened to uphold decree and thus to render property subject to escheat to the State Land Board, an order setting aside the decree and granting wife permission to file an answer finally determined the issue, and the rule that an order merely setting aside a former judgment and permitting a defendant to answer may be reviewed on appeal only from the final decree was not applicable, and hence the state's appeal from order was not dismissible on wife's motion.

ON THE MERITS

Appeal and error — Divorce — Property rights

4. Where wife, after death of husband, filed motion to set aside divorce decree obtained by husband, and state intervened to uphold decree and thus to render husband's property subject to escheat to State Land Board, wife's motion to dismiss state's appeal from order setting aside decree on ground that state abandoned appeal would be denied, in view of fact that State Land Board, as agency of state, filed notice of appeal and appeared in supreme court in support of motion.

Divorce — Default — Fraud

5. Whether statute conferring authority on circuit court to relieve a party at any time within one year after notice thereof from a judgment, order or other proceeding taken against such party through his mistake, inadvertence, surprise, or excusable neglect is applicable where a decree is procured through fraud, or whether an independent suit in equity is necessary in such event, would not be decided by supreme court, where no objection

was made on such ground in circuit court to wife's motion to set aside default divorce decree on ground of fraud of husband in procuring order for publication of summons.

Divorce — Publication of summons — Fraud

6. A husband procuring order for publication of summons in divorce suit on his affidavit that wife was nonresident and resided in Winnipeg, Canada, and addressing summons and complaint to wife in Winnipeg without giving a street and number, was not guilty of such "fraud" as would warrant setting aside of default divorce decree, where wife did in fact reside in Winnipeg and husband acted in good faith.

Divorce — Substituted service

7. A husband's affidavit that wife was nonresident and that she did not reside in Oregon but resided in Winnipeg, Canada, was sufficient to authorize court to order substituted service in husband's divorce suit.

Divorce — Publication of summons

8. A husband suing for divorce and seeking order for publication of summons need not show that due diligence had been exercised to find wife in Oregon, where husband averred in affidavit that wife was nonresident and did not and never had resided in Oregon, but resided in Winnipeg, Canada.

Divorce — Summons — Publication

9. Where husband, suing for divorce, procured order for publication of summons and wife tendered an answer on the merits, divorce decree rendered in suit was not void but was one which would be voidable if husband was guilty of fraud in procuring order for publication.

Divorce — Setting aside decree

10. A wife who had notice or knowledge of divorce decree obtained by husband, for 15 years before instituting proceedings to set decree aside, was precluded by "laches" from setting decree aside.

Judgment — Fraud — Diligence

11. A party who seeks to be relieved from a judgment or decree procured through fraud must exercise reasonable diligence.

Equity

12. Equity aids the vigilant but not those who sleep on their rights.

  See 2 Am. Jur., 904
                  17 Am. Jur., 376
                  19 C.J., Divorce, § 426
                  27 C.J.S., Divorce, § 95
                

Before KELLY, Chief Justice, and BAILEY, LUSK, RAND and ROSSMAN, Associate Justices.

Appeal from Circuit Court, Deschutes County.

T.E.J. DUFFY, Judge.

Suit for divorce by Jack Cook against Maria Jane Cook, wherein a decree of divorce was rendered. After plaintiff's death, defendant filed a motion for an order quashing the service of summons, setting aside the order of default and decree entered, and allowing defendant to appear and defend, and the State of Oregon was permitted to file its complaint of intervention on behalf of the State Land Board. From an order vacating and setting aside the decree of divorce and granting defendant permission to file an answer, the State of Oregon appeals, and defendant moves to dismiss the appeal.

MOTION DENIED. REVERSED.

I.H. Van Winkle, Attorney General, and H.H. DeArmond, of Bend, for appellant.

E.O. Stadter, of Bend, for respondent.

KELLY, C.J.

On the 21st day of December, 1923, the above named plaintiff filed his complaint herein for divorce charging desertion on the part of his wife the above named defendant.

Summons was served by publication.

On the 15th day of February, 1924, a decree of divorce was rendered. On July 16, 1939, plaintiff, Jack Cook, died.

On July 11, 1940, the above named defendant filed a motion for an order quashing the service of summons, setting aside the order of default and decree entered on the 15th day of February, 1924, and allowing defendant to appear and defend in this suit.

On the 24th day of July, 1940, the State of Oregon filed a petition to be permitted to intervene herein and file its complaint of intervention.

An order was thereafter made permitting the State of Oregon to file its complaint of intervention, which, in effect, sought to uphold said decree of divorce for the reason that plaintiff herein died intestate and without heirs, which, unless said decree of divorce should be set aside, rendered his estate, alleged in the intervener's complaint, to be of the value of $10,000, subject to escheat to the State Land Board.

After hearing the testimony, the trial court entered an order vacating and setting aside said decree of divorce and granting defendant permission to file an answer herein.

From this last named order, the State of Oregon has appealed.

Defendant moves to dismiss said appeal on the ground that an order vacating a decree of divorce and permitting defendant to answer is not an appealable order.

1. The authorities generally hold that where the consequences of the divorce are such as affect the property rights of the parties to the suit the death of one party or both parties does not affect the right of the unsuccessful party, or his or her representative to institute vacation proceedings.

2. The doctrine is well settled that an order merely setting aside its former judgment and permitting the defendant to answer may be reviewed upon appeal from the final decree and not otherwise. Carmichael v Carmichael, 101 Or. 172, 181, 199 P. 385, and authorities there cited.

3. This rule is not applicable to the instant case for the reason that defendant's sole and only purpose in securing the order vacating the decree of divorce herein was to secure for her the property owned by plaintiff at his death.

The State of Oregon, by its complaint in intervention, seeks to uphold the validity of the decree of divorce, thereby rendering such property subject to escheat to the State Land Board.

The order made by the trial court finally determined the issue, and the only issue presented herein, namely, whether, on the one hand, defendant is the owner of the property owned by plaintiff at the time of his death, or, on the other hand, the decree of divorce divested defendant of her right to claim such property, and, if plaintiff died without heirs, the State of Oregon may be entitled to it as escheated property.

There are three methods by which such an issue has been presented to the courts. One is the method followed herein by motion of the unsuccessful party to vacate the decree of divorce; another is by a writ of error or a proceeding in the nature of a writ coram nobis; and the third method is by an independent suit.

This court has heard cases wherein the last of these three methods of procedure was followed: Sturm v. Cooper, et al., 145 Or. 583, 28 P. (2d) 231; Sedlak v. Sedlak, 14 Or. 540, 13 P. 452.

The courts are not in agreement as to the propriety of the course pursued herein. The following cases hold that the issue should be presented by an independent suit or action. Watson v. Watson, 1 Hun. 267, 47 How. Pr. 240; Groh v. Groh, 35 Misc. Rep. 354, 71 N.Y.S. 985; Morey v. Morey, 164 Misc. 527, 299 N.Y.S. 161; Zoellner v. Zoellner, 46 Mich. 511, 9 N.W. 831.

The course taken herein has been followed in the following cases: Gambe v. Gambe, 22 Pa. Co. Ct. 23; Fidelity Insurance Co., Appeal, 93 Pa. 242, sc. under title Peterson v. Peterson, 6 W.N.C. 449; Smith v. Smith, 3 Phila. 489, sc. Boyd's Appeal, 38 Pa. 241; Bay v. Bay, et al., 85 Ohio St. 417, 98 N.E. 109; Vincent v. Black, 30 Idaho 636, 166 P. 923.

Contra: Owens v. Sims, 3 Coldw. (Tenn.) 544; Parish v. Parish, 9 Ohio St. 534, 75 Am. Dec. 482; Dwyer v. Nolan, 40 Wash. 459, 82 P. 746, 5 Ann. Cas. 890, 1 L.R.A. (N.S.) 551, 111 Am. St. Rep. 919.

A writ of error was invoked in the following cases: Wren v. Moss, et al., 7 Ill. 72; Israel v. Arthur, Admr. 6 Colo. 85, 7 Colo. 12, 1 P. 442; Givernaud v. Givernaud, 81 N.J. Eq. 66, 85 Atl. 830.

Besides the Oregon cases mentioned, independent suits were instituted in...