This is an appeal from an order vacating a default judgment for divorce and permitting the defendant therein, now respondent, to amend her answer or otherwise plead to the complaint.
The latter is usual in form for divorce upon the ground of desertion. It alleged that the parties were married in June 1947, a son was born in September 19538 and on or about January 1, 1957 respondent, without just cause or excuse, deserted appellant, since which time they have not lived together as husband and wife; further that the parties agreed that appellant should pay to respondent $40 per month for the support of their child until it should become six years old when the monthly payments should be increased to $60, and that respondent should have custody of the child with the right of visitation by appellant.
In the office of the attorney who brought the divorce action for appellant the respondent signed an answer to the complaint in which she admitted the allegations of it and joined in the prayer for divorce. However, this answer was not filed in the court and the attorney averred in the proceeding at hand that it was not intended as an answer, although so denominated, but as a 'statement', that before it was signed by respondent it was read and explained to
her in the presence of a witness. Instead of filing the answer, and contradictory of the existence of it, the attorney made affidavit to the court that the respondent was in default, without, however, the usual averment that she had failed to answer or appear. Inconsistently, the ensuing order of reference recited that respondent in her answer had admitted the allegations of the complaint. The master took the testimony of appellant and two other witnesses, apparently in the form of affidavits and without questions and answers or cross-examination, which substantiated the allegations of the complaint, and he reported to the court and recommended decree of divorce in accord with it. The report contained the following recital: 'The defendant is in default, having failed to answer, demur, or give notice of appearance as required by the Statute of this State, * * *.' Decree followed, dated July 16, 1958, and was filed on July 29. Contrary to the order of reference and consonant with the report of the master, it recited that respondent was in default. There was no notice to respondent of the application for the order of reference, of the reference or of the motion or application for the judgment, or of the filing of it.
The petition to vacate the decree was served on October 3, 1959, and was heard by the resident Circuit Judge who had granted the order of reference and decree. The petition was verified and also supported by the separate affidavit of respondent and by the affidavits of others, including the wife of a brother of appellant. They established, prima facie, that in fact respondent had not deserted appellant and on the contrary that they had lived together as husband and wife, except for brief interval or intervals of separation, until the very night before the commencement of the action; that appellant assured respondent after the divorce action had been commenced, that it had been 'dropped', after which they lived together until July 8, 1958; the affidavit of default and the order of reference were dated at times when appellant and respondent were living together. (Appellant's alleged statement to respondent during the pendency of the action that it had been 'dropped' is not a valid ground for vacation of the judgment. Brock v. Brock, 225 S.C. 261, 81 S.E.2d 898.) Appellant submitted counter affidavits which were in conflict with those submitted by respondent.
The lower court held that the divorce proceeding was fatally irregular for lack of notice to appellant, who had answered, of application for the order of reference, notice of the reference and the application for the decree. Other grounds for vacation of the judgment were also upheld but we need not, and shall not, pass upon them. The order will be affirmed upon the ground just stated. Respondent may have moved to amend her answer during the progress of the action if she had been given the usual notices of such and opportunity to so move. She has followed the proper procedure to vacate the judgment. See the leading case of Crocker v. Allen, 34 S.C. 452, 13 S.E. 650, 27 Am.St.Rep. 831, and the many subsequent decisions in which it has been cited and followed.
Many questions are presented by the exceptions and argued in the brief of appellant. Only those will be discussed which relate to the ground upon which we sustain the order. It should be said, in the first place, that the relief here granted is not dependent upon the statute, Sec. 10-1213 of the Code of 1952, which provides for relief from a judgment for mistake, etc., within a period of one year. The 'mistake' here was on the part of appellant and his counsel rather than respondent, the movant, in retaining and not filing respondent's answer, and in representing to the court that she was in default. This reasonably may be held to have been extrinsic fraud upon her and upon the court. Cf. Bryan v. Bryan, 220 S.C. 164, 66 S.E.2d 609. We add that the record indicates that it was a bona fide mistake of counsel
and, therefore, constructive, rather than actual, fraud. He seems to have simply misapprehended the effect of the interposition of the answer. Other attorneys have represented appellant in the present proceeding and appeal.
The following is from 17 Am.Jur. 594, Divorce and Separation, Sec. 494: 'A wife whose attorney, without authority and in violation of his duty, has refused to file or has withdrawn her answer and suffered a judgment to be taken against her by default in her husband's divorce suit, has a legal right to have the decree set aside and the case opened for defense, upon her motion, promptly made, for that relief.' Nichells v. Nichells, 5 N.D. 125, 64 N.W. 73, 33 L.R.A. 515, 57 Am.St.Rep. 540. Annotation, L.R.A.1917B, 464.
Appellant contends that the answer of respondent was a nullity because it was not verified, whereas the complaint was verified. Code Sec. 10-603. But it was accepted and retained by his counsel; indeed, it was prepared by him. This constituted waiver of the absence of verification. Cf. Southern Cotton Oil Co. v. Lightsey, 100 S.C. 41, 84 S.E. 301.
Reliance is had upon the authority of Brock v. Brock, supra, 225 S.C. 261, 81 S.E.2d 898, 900, which...
