Locke v. Locke
| Decision Date | 31 October 1894 |
| Parties | LOCKE v. LOCKE. |
| Court | Rhode Island Supreme Court |
Motion by Sarah A. Locke to set aside a decree of divorce granted Ernest C. Locke, and to reinstate the case on the docket for trial. Granted.
George J. West, for petitioner.
John D. Thurston, for defendant.
This is a motion to set aside the decree entered in said case on the 9th day of May, 1894, and reinstate the case on the docket for trial, on the ground that the defendant had no notice of the pendency thereof. The facts which appear of record are these: On February 9, 1894, the plaintiff filed in this court a petition for divorce against the defendant, on the ground of adultery, upon which petition a citation was duly issued, returnable on the fourth Monday of April, 1894; that said citation was duly served upon the defendant February 10, 1894, by a deputy sheriff, by reading the same to her in her presence and hearing, and by leaving a certified copy of the petition with the defendant in person; and that on the 9th day of May, 1894, said petition, which was unanswered and uncontested, was heard and granted nisi. In support of her motion, the defendant makes affidavit that no service of any paper was ever made upon her in the matter of said petition for divorce, and that she had no notice or knowledge whatever that any such petition had been filed until some time after the entry of said decree; that the first knowledge she ever had that said petition had been filed, and that any proceedings had been had thereon, was on the 16th day of October, 1894, when a complaint which she had made against her husband for nonsupport was on trial before the district court of the city of Providence, wherein he testified that he had obtained a divorce from her. The defendant further makes affidavit that she is entirely innocent of the charge brought against her in said petition, and that she will prove her innocence if allowed an opportunity to be heard.
While it is true that an officer's return upon a writ is conclusive, and cannot be controverted incidentally by motion or plea, except in cases specially provided for by statute (Angell v. Bowler, 3 R. I. 77), yet as, under section 2 of chapter 26 of the judiciary act, the court has control over its decrees for the period of six months after the entry thereof, and may, for cause shown, set aside the same, and reinstate the case, or make new entry and take other proceedings, with proper notice to parties, as...
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