Dwyer v. Nolan
| Decision Date | 07 November 1905 |
| Citation | 40 Wash. 459,82 P. 746 |
| Parties | DWYER et al. v. NOLAN. |
| Court | Washington Supreme Court |
Appeal from Superior Court, King County; A. W. Frater, Judge.
Action by John M. Nolan against Elizabeth Nolan. There was a judgment for plaintiff, and defendant sought to have the same set aside. Dennis Dwyer and another, executors of John M Nolan, deceased, were substituted as plaintiffs. From a judgment denying the application, defendant appeals. Affirmed.
J. W. Langley and Robert D. Hamlin, for appellant.
Boyle & Warburton, for respondents.
This case is appealed from the order of the superior court of King county refusing to vacate a judgment in a divorce case. The divorce action was brought by John L. Nolan, and the decree was granted on November 20, 1899. On April 6, 1905, the appellant appeared in this action by motion and affidavits in support of the same, and sought to have the decree of November 20, 1899, set aside and vacated. The plaintiff, John M. Nolan, having died in January, 1905, his executors were substituted as parties plaintiff. The contention of the appellant is that the court acted without competent jurisdiction of the party defendant in the divorce proceeding, and that the judgment was therefore void. We will not enter into an investigation of the question presented as to whether or not the service in the divorce proceeding was sufficient to give the court jurisdiction of the person of the defendant, for the reason that there are no proper parties to this proceeding, and in the nature of things, the plaintiff having died, that the question of divorce cannot be relitigated. It will not be gainsaid that an action for divorce is a purely personal action. Nothing is sought to be affected but the marital status of the husband and wife. The distribution of property in such an action is incidental, and it is clearly incontestable that upon the death of either party, whether before or after the decree, the subject of the controversy is eliminated. If the death of the plaintiff in this case had occurred before judgment, it will not be urged that there could have been a substitution of his executors to represent him in the prosecution of the case. Such a proposition, for manifest reasons, would not be entertained by a court for a moment. What additional authority or power did they have to represent him in the same case, when he died after judgment? Manifestly none. They cannot stipulate with reference to the decree. They cannot consent to setting aside the judgment. There is no conceivable particular in which they represent the deceased or the heirs with reference to the subject-matter of the action in the slightest degree. The very nature of the action renders this impossible. In the light of this fact, a service upon them of a motion to vacate the judgment is farcical, and the case proceeded, if it proceeded at all, without notice and on a purely ex parte basis.
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