Gillen v. Gillen

• Decision Date: 08 June 1945
• Docket Number: 8560.
• Parties: GILLEN v. GILLEN (GILLEN, Intervener).
• Court: Montana Supreme Court

159 P.2d 511

117 Mont. 496

GILLEN v. GILLEN (GILLEN, Intervener).

No. 8560.

Supreme Court of Montana

June 8, 1945

Appeal from District Court, Eighth District, Cascade County; C. F Holt, Judge.

Action by Robert E. Gillen against Marguerite Gillen for divorce wherein plaintiff secured a default decree. After the entry of the decree plaintiff died. Defendant moved to set aside the decree for fraud, and Beatrice McLeod Gillen intervened in opposition to such motion. From an order vacating the decree, intervener appeals.

Affirmed.

E. J. Stromnes and R. K. West, both of Great Falls, for appellant.

Murch & Wuerthner, of Great Falls, for respondent.

CHEADLE Justice.

Appeal from an order vacating a decree of divorce. On March 23 1943, Robert Gillen, plaintiff, filed an action for divorce against Marguerite Gillen, defendant, alleging desertion. The complaint alleges residency of plaintiff in Montana for more than one year immediately preceding the commencement of the action. No service of summons was had. A general demurrer to the complaint was filed in behalf of the defendant by one E. B. Parsons, an attorney, on April 8, 1943. Thereafter said Parsons and plaintiff's attorney signed a stipulation, in behalf of the parties, 'that the demurrer heretofore filed in said action may be called up at any time without notice, and argument waived; if said demurrer is overruled, the plaintiff may have the default of the defendant entered; that the defendant declines to plead further in said action.' Thereafter the demurrer was overruled and default of the defendant entered. Decree of divorce was given and entered on April 29, 1943.

On January 19, 1944, the defendant, Marguerite Gillen, filed in the district court motion to vacate and set aside the decree on the grounds that fraud had been committed upon her and the court in the granting of the decree, in that no service of process in the action or notice of any kind of its pendency was made or given her; that at no time did defendant authorize or retain E. B. Parsons or anyone else to represent and appear for her in the action that the purported appearance by said Parsons is wholly unauthorized, unfounded and lacking in authority.

The purported authority of Mr. Parsons to represent the defendant is contained in the following undated letter:

'Mr. E. B. Parsons

'Great Falls, Montana.

'Dear Sir:

'I wish to have you represent me in a divorce case instigated by my husband.

'I wish to have you enter a demure and a day later a stipulation. My husband will pay your fee as I do not wish to contest. You may contact him through Mr. Gray, the lawyer in the next office.

'Yours truly,

'(Signed) Marguerite Gillen.'

This letter was contained in an envelope bearing an air mail stamp, postmarked at a U.S. Army Post Office [presumably at Gore Field, Great Falls, Mont.], under date of April 8, 1943.

The motion is based on affidavits of Anna C. Gillen, mother of the deceased plaintiff; Marguerite Gillen, the defendant; a certificate of Louie Miller, Jr., Captain Air Corps, United States Army; the files, proceedings and docket in the cause; and such other and further evidence as might seem proper to the court.

A petition for leave to intervene in the proceeding and to oppose the motion was filed by Beatrice McLeod Gillen on February 14, 1944. After objection by defendant, and hearing on an order to show cause, an order was made granting leave to intervene. Petition in intervention, and answer thereto, followed. By an order of March 14, 1944, the matter was set for hearing on March 23, 1944. This order directed service thereof upon the parties and upon J. E. Kramer, administrator of the estate of Robert E. Gillen, deceased. Service was duly made on each thereof. At the hearing testimony was presented by the defendant and the intervenor and other witnesses in behalf of both. On June 9, 1944, the court made its order that the purported decree of divorce be set aside, vacated and held for naught, and that same be expunged from the records and proceedings. Such order was based on the following findings and conclusions:

'And the court being duly advised in the premises and it having been conclusively shown that the defendant, Marguerite Gillen, was at no time or at any place served with process herein or with the summons and complaint and was not notified of the within entitled action or had knowledge thereof until after the decease of the said plaintiff, Robert E. Gillen, which was on or about December 22nd, 1943, and after the rendition of said purported decree of divorce;

'That the said defendant never at any time retained or authorized the said E. B. Parsons, Esq., as counsel to represent her in said cause, and said undated letter purprtedly from the defendant to the said Parsons and upon which he based his authority to represent the defendant in the within entitled proceedings, is a palpable forgery; and the evidence conclusively proving that fraud was committed upon the defendant herein and this court in the proceedings which resulted in the granting of the said divorce decree, purporting to be given, made and entered by this court, on April 29th, 1943, and docketed in Volume 13, page 220 of Miscellaneous Judgments in the official files of the office of the Clerk of the above entitled District Court.'

The evidence adduced at the hearing was excluded from the bill of exceptions at appellant's request. No question of its sufficiency to support the order appealed from is presented, the only question for determination being that of jurisdiction of the District Court.

During the hearing, and apparently at the conclusion of defendant's evidence, the intervenor moved to dismiss the motion to vacate the decree, on the ground of lack of jurisdiction by the court over the subject matter or to entertain the motion by reason of the provisions of section 9187, Revised Codes. This motion was taken under advisement, and apparently not directly ruled on by the court.

Since it is not in question, we will not discuss the contents of the affidavits and other papers filed in support of the motion to vacate the decree, except that they establish the following facts: (1) That summons in the divorce action was not served upon the defendant, either personally or by publication; (2) that neither E. B. Parsons, who filed the demurrer in defendant's behalf, nor anyone else, was authorized by the defendant to appear for her in the action; (3) that the letter purportedly authorizing Mr. Parsons to appear for the defendant was not signed by the defendant, and is a forgery; (4) that the defendant did not learn of the pendency of the divorce action, or of the decree therein, until after the death of Robert E. Gillen, several months after the decree was entered; (5) that the plaintiff, Robert E. Gillen, was not a resident of Montana for the period of one year prior to the commencement of the divorce action, or for more than four months prior thereto.

Since the evidence introduced at the hearing is not before us, we must assume its sufficiency, in conjunction with the affidavits, to sustain the court's finding that fraud was committed upon it and the defendant, resulting in the granting of the decree of divorce.

As before noted, the only question before us is that of the jurisdiction of the district court to entertain the motion to vacate and set aside the decree of divorce, filed nine months subsequent to the entry of the decree. Appellant contends that, the decree being fair upon its face and no defect appearing in the judgment roll, it is not subject to attack by motion filed more than six months after its entry, under the provisions of section 9187, Revised Codes. She argues that defendant's only remedy, under these circumstances, is an equitable action to set aside the decree.

Section 9187 provides in part: 'The court may, in furtherance of justice, and on such terms * * * as may be just, relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; provided, that application therefor be made within reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken. When from any cause the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representative, at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action.'

The judgment in this case was not taken against the defendant through her mistake, inadvertence, surprise, or excusable neglect. It was taken against her through fraud of the plaintiff--extrinsic fraud practiced against her and the court, resulting in the granting of the decree....