Jones v. Jones

• Decision Date: 25 July 1911
• Citation: 59 Or. 308,117 P. 414
• Parties: JONES v. JONES.
• Court: Oregon Supreme Court

117 P. 414

59 Or. 308

JONES v. JONES.

Supreme Court of Oregon

July 25, 1911

Appeal from Circuit Court, Clackamas County; J.U. Campbell, Judge.

Action by Louise Jones against Thomas E. Jones. Decree for plaintiff, and defendant appeals. Reversed and remanded.

William M. La Force, for appellant.

C.D. &amp D.C. Latourette, for respondent.

EAKIN C.J.

On July 10, 1907, plaintiff commenced a suit in Clackamas county for a divorce from defendant; both persons at that time being residents of Multnomah county. The complaint does not state in what county either person resided. In the prayer of the complaint, plaintiff asks for an order that defendant pay to her $250 alimony (probably suit money was intended) and $40 a month for the benefit of plaintiff pending the suit. Pursuant to the prayer, on July 13, 1907 the court made an order, requiring defendant to pay into court $150 alimony and $20 per month as maintenance. This order was served on defendant in Multnomah county on July 17 1907. The summons was served in the same county on July 12th but the return was not filed until September 12th. On August 6th, defendant, by his attorney, filed in the case a motion for a change of venue to Multnomah county, reciting in the motion and affidavit in support thereof that plaintiff and defendant were residents of Multnomah county.

The filing of this motion, although reciting that defendant appeared specially for the purposes of the motion, and for no other purpose, was a general appearance. The motion asks for an order that could only be made upon the assumption that the court had jurisdiction of the suit. Belknap v. Charlton, 25 Or. 41, 34 P. 758; Multnomah Lumber Company v. Weston Basket Company, 54 Or. 22, 26, 99 P. 1046, 102 P. 1. Therefore, whether the court of Clackamas county obtained jurisdiction or not of the suit or the defendant, by the filing of the complaint and service of summons in Multnomah county, it did acquire jurisdiction by the general appearance of defendant on August 6, 1907.

On September 12, 1907, defendant filed a motion, asking to have the order of July 13, 1907, for the payment of alimony, vacated and set aside, on the ground that plaintiff and defendant have settled their differences. This was also a general appearance by defendant. No disposition was made of this motion. On February 18, 1908, defendant filed a motion to dismiss the suit, for the reason that plaintiff had condoned the cause for divorce on September 1, 1907, and that thereafter plaintiff had resumed her marital relations with defendant. This motion was based upon two affidavits, one by defendant and the other by plaintiff, in which it is stated that plaintiff had voluntarily returned to the home of defendant, and had condoned his past offenses, and had resumed marital relations with him; and plaintiff asks to have the suit dismissed. This was also a general appearance. The motion remains undisposed of. On June 29, 1909, on motion of plaintiff's attorney, judgment of default was rendered against defendant, and thereafter, on July 1st, a decree was rendered, dissolving the marriage relations existing between plaintiff and defendant, and a judgment against defendant for $250 alimony, and $20 per month as maintenance, and $22 for costs. Again, on August 17, 1909, defendant filed a motion in the case, asking to have the decree vacated, for the reason that the court had no jurisdiction to render the same; and that, on September 1, 1907, plaintiff condoned the acts of defendant, set forth as the cause of suit, long before the date of the decree, which motion was denied on October 11, 1909.

It appears that plaintiff and defendant had settled their differences, which were the subject of this suit, prior to September 1, 1907, and were living and cohabiting together thereafter. There can be no question but that the persons themselves to a suit may settle the subject of the litigation, and they having done so in this case, and that fact having been brought to the knowledge of the court, it could not proceed further with the suit. The law regards the marriage relations with peculiar favor. The public has an interest in a divorce suit, and the courts should administer their jurisdiction of that subject in view of the public good, as well as private rights. Adams v. Adams, 12 Or. 176, 6 P. 677. Even where the defendant expressly or impliedly admits the misconduct or makes default, it is not sufficient to authorize a decree of divorce, without proper proof of the facts. 14 Cyc. 702.

In Hill v. Hill, 24 Or. 416, 33 P. 809, Mr. Justice Bean says: "The accusation of adultery, so far as this testimony discloses, if made at all, may have been made at any time during the married life of the parties, and have been fully condoned by subsequent cohabitation, and if this be so the plaintiff is not entitled to a decree of divorce, although the defendant has not pleaded the condonation."

In Wheeler v. Wheeler, 18 Or. 262, 24 P. 901, Mr. Justice Lord says: "It is our duty to remember that the contract of marriage, unlike other contracts, the state is specialty interested in preserving unbroken, and that the contracting parties cannot annul it, nor the court, except for the causes specified in the statute, and only then when satisfactory evidence that such cause or causes exist."

If the facts alleged for grounds of divorce are...