Lahey v. Lahey

• Decision Date: 07 November 1923
• Citation: Lahey v. Lahey, 109 Or. 146, 219 P. 807 (Or. 1923)
• Parties: LAHEY v. LAHEY.
• Court: Oregon Supreme Court

219 P. 807

109 Or. 146

LAHEY v. LAHEY.

Supreme Court of Oregon

November 7, 1923

In banc.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by Gertrude Lahey against John E. Lahey. Judgment for defendant, and plaintiff appeals. Affirmed.

On May 19, 1919, a decree was granted to plaintiff in the circuit court for Multnomah county, Or., purporting to annul her marriage relation with the defendant John E. Lahey. On June 6, 1919, during the term of court at which that decree was granted, Walter H. Evans, as district attorney for Multnomah county, Or., by George C. Graham, deputy, moved the court to set aside the decree on account of the failure of the complaint to state a cause of suit, and for the further reason that the record failed to disclose evidence that R. J White, former husband of plaintiff, was alive at the time of her marriage to the defendant in this suit, and, generally for lack of testimony to support the decree and findings of fact. On June 10, 1919, the court made an order setting aside the decree theretofore granted, and gave the state until June 20th thereafter to file its answer, and the plaintiff until June 27th to reply thereto. After the joinder of issues testimony being adduced upon the part of the plaintiff and the state of Oregon respectively, the court, on December 2 1919, made and entered the following order:

"Be it remembered that heretofore, the findings and decree in this cause having been set aside, and the state of Oregon having answered, the matter was submitted to the court on behalf of the plaintiff and the state of Oregon on the testimony of many witnesses and numerous exhibits. Having considered the cause, and the argument of counsel, it is now ordered and decreed that the defendant go hence without date; that plaintiff take nothing by her suit herein, and that no allowance be made to anybody for costs or disbursements.

"Robert G. Morrow, Judge."

The appellant now says there is manifest error on the face of the record in the following particular, to wit:

"That the court erred in setting aside the decree of annulment."

Morris A. Goldstein, of Portland, for appellant.

Stanley Myers, Dist. Atty., and J. L. Hammersly, George C. Graham, and Wm. H. Hallam, Deputy Dist. Attys., all of Portland, for the State.

BROWN, J. (after stating the facts as above).

The point urged by plaintiff upon appeal is that of alleged error, because of the court's order vacating its decree.

The decree in the case at bar was rendered, entered, and set aside at the same term of the circuit court. The decree vacated was based upon a complaint that was insufficient to sustain a decree annulling a bigamous marriage.

It is a well-established legal principle that judgments and decrees remain under the control of the court which gave them, throughout the term at which they are made and entered of record. This rule is familiar law in Oregon, and the authorities are collected in a statement of that principle by Mr. Justice Burnett, as follows:

"It is well settled that any order or determination of a court, although it be a final judgment or decree, may be altered, modified or reversed by the court making it, at any time during the term at which it is made. Deering & Co. v. Quivey (Deering v. Creighton), 26 Or. 556, 38 P. 710; Ayers v. Lund, 49 Or. 303, 86 P. 806, 124 Am. St. Rep. 1046; Zelig v. Blue Point Oyster Co., 61 Or. 535, 113 P. 852, 122 P. 756; First Christian Church v. Robb, 69 Or. 283, 138 P. 856. The reason is based on the old common-law fiction that the whole term is considered as being but one period of time, all parts of which are ever present before the presiding judge, who makes of it but one transaction, with the condition that when it has lapsed, either by adjournment sine die or by operation of law, the whole matter has passed from the bosom of the court and beyond its control. This much is true only of final judgments or decrees fully disposing of the whole litigation." Anderson v. Anderson, 89 Or. 654, 657, 175 P. 287.

There is an unbroken line of authorities to this effect. The law is well settled in both federal and state courts.

The plaintiff challenges the authority of the district attorney to defend on any ground other than that of fraud or collusion.

"In any suit for the dissolution of the marriage contract, or to have the same declared void, the state is to be deemed a party defendant, and the party plaintiff in such suit shall cause the summons to be served upon the district attorney of the district within which the suit is commenced, or his duly appointed deputy, at least 10 days before the term at which the defendant is required to appear and answer. It shall be the duty of such district attorney, so far as may be necessary to prevent fraud or collusion in such suit, to control the proceedings on the part of the defense, and in case the defendant does not appear therein, or defend against the same in good faith, to make a defense therein on behalf of the state. * * *" Or. L. § 1020.

The language of the statute is plain, and the duty of the district attorney is manifest.

In Keeley v. Keeley, 97 Or. 596, 599, 192 P. 490, 491, Mr. Justice Benson, in expressing the opinion of the court, wrote the following relative to the duty of the district attorney:

"It will therefore be observed that in every suit for divorce in which the marriage defendant makes default, it is the imperative duty of the district attorney to make a defense."

To like effect is Smythe v. Smythe, 80 Or. 150, 149 P. 516, 156 P. 785, Ann. Cas. 1918D, 1094.

Under the provisions of section 1020, Oregon Laws, quoted above, it is always the duty of the district attorney to defend against either collusion or fraud in a divorce suit, and, to that extent, to control the proceedings on the part of the defendant, and whenever the defendant makes default, or neglects to defend in good faith against the charge contained in the complaint for a divorce, the district attorney should always make a defense on behalf of the state of Oregon. The reason of the statute is based on the theory that a divorce suit is a triangular proceeding. Under our law, the plaintiff, the defendant, and the state of Oregon are all deemed parties. It is the policy of the state to preserve the married status. In carrying out such policy, the statute expressly empowers and directs the district attorney to defend on behalf of the state, in all such cases as the one at bar.

This proceeding was instituted for the purpose of annulling an "attempt" at marriage between the plaintiff and the defendant herein.

Our statue provides that--

"A husband or wife may maintain a suit against the other for dissolution of the marriage contract, or to have the same declared void, as provided in this chapter." Or. L. § 501.

It is next provided that--

"All marriages which are prohibited by law * * * on account of either of them having a former husband or wife then living, * * * shall, if solemnized within this state, be absolutely void." Or. L. § 502.

Now passing to section 504, Oregon Laws, it is enacted that--

"A marriage may be declared void from the beginning, at the suit of either party, for any of the causes

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