Dallas v. Luster
| Decision Date | 13 April 1914 |
| Citation | 147 N.W. 95,27 N.D. 450 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Williams County, Fisk, J.
Action to set aside a decree of divorce. Judgment for plaintiff. Defendant appeals.
Affirmed.
Palmer Craven, & Burns, for appellants.
The marriage relation was severed by death and by the judgment entered, and the court will not set aside the judgment of divorce, unless there are property rights involved. Hite v. Mercantile Trust Co. 156 Cal. 765, 106 P. 102; Day v. Nottingham, 160 Ind. 408, 66 N.E. 998; 1 Current Law, 950; 15 Current Law, 1432.
The insufficiency of the service in the former action, if any was waived by general appearance, and cannot be raised in this case. Henry v. Henry, 15 S.D. 80, 87 N.W. 522.
Such appearance is, in itself, a confession that the court had jurisdiction of the person of defendant. Wm. Deering & Co. v. Venne, 7 N.D. 576, 75 N.W. 928; Corbett v Physicians' Casualty Asso. 135 Wis. 505, 16 L.R.A.(N.S.) 177, 115 N.W. 365.
A party who seeks relief on the ground of want of jurisdiction must object on that ground alone, and keep out of court for all other purposes. State ex rel. Thompson v. District Ct. 51 Minn. 401, 53 N.W. 714; Howland v Jeuel, 55 Minn. 102, 56 N.W. 581; 2 Elliott, Gen. Pr. § 475; 3 Cyc. 514, 515, 517; Note to Corbett v. Physicians' Casualty Asso. 16 L.R.A.(N.S.) 177; Yorkey v. Yorkey, 3 N.D. 343, 55 N.W. 1095.
If the truth or falsity of testimony given in a case in which judgment has been entered could be subsequently inquired into, there would be no end to litigation. Graves v. Graves, 132 Iowa 199, 10 L.R.A.(N.S.) 216, 109 N.W. 707, 10 Ann. Cas. 1104; Steele v. Culver (South Haven & E. R. Co. v. Culver) 157 Mich. 344, 23 L.R.A.(N.S.) 564, 122 N.W. 95; Reeves v. Reeves, 24 S.D. 435, 25 L.R.A.(N.S.) 574, 123 N.W. 869.
In actions of this character, the plaintiff should show, by clear and convincing proof, that plaintiff in the divorce action was guilty of having practised fraud and deception, and had prejudiced her rights. Pico v. Cohn, 91 Cal. 129, 13 L.R.A. 336, 25 Am. St. Rep. 159, 25 P. 970, 27 P. 537; Reeves v. Reeves, 24 S.D. 435, 25 L.R.A. (N.S.) 574, 123 N.W. 869.
The absence of plaintiff's relatives, or their depositions as to her residence at time of divorce case, is not explained. 16 Cyc. 1062.
There were erasures and alterations in the purported letters of plaintiff's husband, favorable to plaintiff. This fact raises a presumption against such evidence, unless fully explained away. Wilson v. Hayes, 40 Minn. 531, 4 L.R.A. 196, 12 Am. St. Rep. 754, 42 N.W. 467.
Such alterations must be explained, and the burden is upon the party offering such letters, to make full and satisfactory explanation. Cass County v. American Exch. State Bank, 9 N.D. 263, 83 N.W. 12; 2 Cyc. 242; 1 Cyc. 815; Smith v. United States, 2 Wall. 219, 17 L.Ed. 788; Tillou v. Clinton & E. Mut. Ins. Co. 7 Barb. 564; Acker v. Ledyard, 8 Barb. 514; O'Donnell v. Harmon, 3 Daly, 424; Huntington v. Finch, 3 Ohio St. 445; Wilde v. Armsby, 6 Cush. 314; 11 Enc. Ev. 953, note 8.
The fact that a part of the written letter has been cut off was a suspicious circumstance, throwing the onus on the respondent to fully explain. Burton v. American Guarantee Fund Mut. F. Ins. Co. 88 Mo.App. 392; Stillwell v. Patton, 108 Mo. 352, 18 S.W. 1075; Drosten v. Mueller, 103 Mo. 624, 15 S.W. 967; 11 Enc. Ev. 956; Baldwin v. Threlkeld, 8 Ind.App. 312, 34 N.E. 851, 35 N.E. 841; Speer v. Speer, 7 Ind. 178, 63 Am. Dec. 418; Rudolph v. Lane, 57 Ind. 115.
Aaron J. Bessie and Palda, Aaker, & Greene, for respondents.
The affidavit, made in the original or divorce action, to lay the foundation for the service of the summons by publication, was wholly defective. It is largely on information and belief, and no reference is made to any return of the sheriff, or that any diligence was used to ascertain the residence of the defendant in such action. The court obtained no jurisdiction therein, and the divorce was void. Rev. Codes 1905, § 6840, subdiv. 3; Roberts v. Enderlin Invest. Co. 21 N.D. 594, 132 N.W. 145; Yorke v. Yorke, 3 N.D. 351, 55 N.W. 1095.
BRUCE, J. GOSS, J., did not participate.
This is an action by a wife to vacate a decree of divorce. Though brought after the death of the husband, it is based upon a theory of property rights, and is instituted in order that the plaintiff may take proceedings to contest the will of her husband and recover her just share of his estate.
Being based upon property rights, the action is maintainable. Hite v. Mercantile Trust Co. 156 Cal. 765, 106 P. 102; Day v. Nottingham, 160 Ind. 408, 66 N.E. 998. Since there was no legal service upon the wife (the present plaintiff) in the original action, the judgment should be vacated and set aside. There was no personal service upon the then defendant, and no appearance by her or knowledge by her of the proceedings. The affidavit for publication of the summons was altogether insufficient. It was made by the attorney for the plaintiff, and went merely to the extent of the knowledge of that attorney. No attempt was therein made, even upon information and belief, to show that the plaintiff himself had no knowledge of the defendant's place of residence or address. There was in it no proof or even any statement of any effort, either on the part of the attorney or of his client, to ascertain her whereabouts. There was no proof even of the mailing of a copy of the summons and complaint to the defendant's last known address. The fact that defendant was not a resident of the state was merely asserted upon the belief of the attorney. The provisions of § 6840, Rev. Codes 1905, relating to service by publication, were, in short, totally ignored. That they must be strictly compliant with them is and should be the invariable rule and holding of this court. Roberts v. Enderlin Invest. Co. 21 N.D. 594, 132 N.W. 145. Nor were the defects cured and the proceedings validated by the subsequent appearance of the defendant wife in the action by a motion in which she prayed for an order to show cause why the judgment entered in the action "should not be vacated and set aside, and why the defendant should not have judgment for a dismissal of said action, and such other and further relief as to the court shall seem just." This, it is true, was to all intents and purposes a general appearance, and was made such by the prayer for the dismissal and the further relief. It is true that to be a special appearance it should have stopped at merely asking for the vacation of the judgment. Corbett v. Physicians' Casualty Co. 135 Wis. 505, 16 L.R.A.(N.S.) 177, 115 N.W. 365; Henry v. Henry, 15 S.D. 80, 87 N.W. 522; William Deering & Co. v. Venne, 7 N.D. 576, 75 N.W. 926; 3 Cyc. 514, 515, 517.
It was however, a general appearance merely for the purposes of any further proceedings that might be had on the reinstated action if the motion had been granted and the judgment had been vacated. Yorke v. Yorke, 3 N.D. 343, 55 N.W. 1095; Simensen v. Simensen, 13 N.D. 305, 100 N.W. 708.
The court having overruled the motion and dismissed the order to show cause, "for the reason that plaintiff in said action is dead, and said action, which was an action for divorce, was or would be thereby...
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