Jarrard v. Jarrard
| Decision Date | 07 June 1921 |
| Docket Number | 15992. |
| Citation | 116 Wash. 70,198 P. 741 |
| Court | Washington Supreme Court |
| Parties | JARRARD v. JARRARD. |
Appeal from Superior Court, Spokane County; Bruce Blake, Judge.
Petition by Mary E. Jarrard against G. T. Jarrard to set aside decree of divorce entered against her by default. From a judgment vacating the decree and permitting defendant to appear, and defend, G. T. Jarrard appeals. Affirmed.
D. R Glasgow, of Spokane, for appellant.
W. C Donovan, of Spokane, for respondent.
The respondent on January 3, 1920, signed and verified a petition, which was duly filed two days later (whether served in the interim does not appear), in and by which she sought to have set aside a decree of divorce entered by default on December 30, 1919, in favor of her husband, the appellant here. The petition charges that the decree was obtained by reason of fraud practiced by the prevailing party (a) in obtaining service by publication by mailing a copy of the summons and complaint to her, 'General Delivery Portland, Oregon,' when he knew her street address in that city, alleging that she never received the papers which were so mailed; and (b) charging in effect that the husband testified falsely upon the trial of the divorce action that a property settlement had theretofore been made, and that he knew of no reason for his wife having left him, when in fact he induced and persuaded her to leave, and gave her money with which to do so, and making further allegations which, if true, would defeat the husband's action, and probably entitle the wife to a divorce. Appellant by answer took issue upon these allegations. The case came on for trial before a judge other than the one who had heard the divorce case, and from a judgment vacating the decree of divorce and permitting respondent to appear in, answer, and defend the divorce action, the case is brought here on appeal.
The trial court found that there was no fraud in the matter of the service of the summons, and no irregularity therein, with which finding we are in entire accord. He also found that there was collusion between the parties prior to the entry of the decree, that respondent has a meritorious defense to the divorce action, and that public policy demands that the decree be vacated and the wife be permitted to defend.
We are not satisfied that collusion is here shown, as collusion is usually defined. The wife, after she had knowledge of the pendency of the action, demanded a property settlement, and intimated that, unless a settlement satisfactory to her was made, she would defend and defeat the action. All her demands were made by letters written to her husband's attorney, and we see nothing collusive in his answers thereto, his submission of the demands to his client or in the agreement which was reached that the wife should receive title to the home property in full of her property rights.
We are satisfied that there was a sufficient showing of a meritorious defense to warrant the court, under Rem. Code.§ 235, were this other than a divorce action, in permitting the defendant served by publication to appear and defend the action. The Legislature seems to have excepted divorce actions from the operation of this statute upon no other theory, so far as we can judge, than that within the year the situation might so change as to make it unwise to disturb a decree; but where the application is made, as here, promptly and within a very few days of the rendition of the judgment, and no change in conditions has occurred, the reason for the rule does not exist.
But in any event, speaking of this section of the statute in Chaney v. Chaney, 56 Wash. 145, 105 P. 229, Mr. Justice Parker said:
And in Graham v....
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