Marriage of Henry, Matter of

• Decision Date: 03 June 1986
• Docket Number: No. D83-0779,D83-0779
• Citation: 721 P.2d 430,301 Or. 185
• Parties: In the Matter of the MARRIAGE OF Ayres Vincent HENRY, Respondent on Review, and Arlene Kay Henry, Petitioner on Review. ; CA A30423; SC S31788. *
• Court: Oregon Supreme Court

Page 430

721 P.2d 430

301 Or. 185

In the Matter of the MARRIAGE OF Ayres Vincent HENRY Respondent on Review and Arlene Kay Henry, Petitioner on Review.

No. D83-0779; CA A30423; SC S31788.

Supreme Court of Oregon In Banc ^*.

Argued and Submitted Sept. 30, 1985.

Decided June 3, 1986.

Nancy Sideras, Hillsboro, argued, for petitioner on review. With her on brief was Nancy Sideras & Associates.

Thomas P. Howe, Howe & Harder, Portland, filed a response brief for respondent on review and waived oral argument.

LENT, Justice.

The issue is whether the Court of Appeals has jurisdiction over an appeal by a party who failed to answer in circuit court although that party concedes that she was personally and properly served with summons in another state. We hold that the Court of Appeals has jurisdiction.

This is a suit by a husband for dissolution of a marriage. The husband's petition alleged that he had been a resident of and domiciled in Oregon for a period of six months preceding commencement of the suit, thus satisfying the requirement of ORS 107.075(2) for jurisdiction of a suit for dissolution. In addition to seeking dissolution, the husband petitioned the court to declare that certain real property occupied by the wife in the State of Washington "should be declared to be held by the parties as tenants in common." ¹ The petition also alleged that personal property in the possession of the husband in Oregon should be awarded to him and personal property in the possession of the wife in Washington should be awarded to her. The petition further alleged that the parties had two minor children, a daughter residing with the wife and a son residing with the husband. The husband asked that each party be awarded the custody of the child then living with that party and that the husband should be ordered to pay $100 per month for support of the daughter.

The wife did not appear in the circuit court by answer or otherwise. After the time for appearing had expired, the husband applied for an order of default. The court ordered that "the respondent is in default" and entered a decree ² in accordance with the husband's prayer in the petition, granting dissolution of the marriage, awarding custody and support, dividing the personal property wherever held and declaring the parties to be tenants in common of the real property in Washington.

The wife timely filed notice of appeal. She conceded the circuit court's jurisdiction to dissolve the marriage but contended that the circuit court lacked jurisdiction to award custody of the children and to make provision for support for want of proper basis in the pleadings and that the court lacked jurisdiction either in rem or in personam to divide the personal property and to declare the rights of the parties in and to the real property. The Court of Appeals concluded that wife's arguments were irrelevant because it lacked jurisdiction to hear an appeal from a decree given for want of an answer where the defaulting party was properly served.

There is no inherent right to appellate court review; the right to appeal springs from statute. Waybrant v. Bernstein, 294 Or. 650, 653, 661 P.2d 931 (1983). Right to appellate review is provided by ORS 19.020, which states in part that "[a]ny party to a judgment or decree, other than a judgment or decree given * * * for want of an answer, may appeal therefrom." (Emphasis added.) This text does not authorize appeals from judgments or decrees given for want of an answer.

This court held in Smith v. Ellendale Mill Co., 4 Or. 70 (1870), however, that there is an exception. In that case summons was served requiring defendant to appear in Multnomah County Circuit Court for an action commenced in Marion County Circuit Court. Defendant did not appear and judgment was given in Marion County. Defendant appealed, contending that the trial court had no jurisdiction of defendant. Plaintiff moved to dismiss the appeal. A statute, General Laws of Oregon, chapter 2, section 246 (Deady 1845-1864), provided that judgment for want of an answer could be given when defendant had been "duly served with the summons." The court reasoned that the judgment was not one which could be taken for want of an answer; it therefore denied the motion to dismiss the appeal and reversed the judgment of the trial court.

In Trullenger v. Todd, 5 Or. 36 (1873), this court explained that Smith v. Ellendale Mill Co., supra, held the judgment was void for want of jurisdiction over the person of defendant. In Trullenger the sheriff had made a return of service on the defendant by showing service on a person over the age of 14 years at the defendant's dwelling house. The court noted that the statute permitted such service only if the defendant "be not found" and that the return of service did not show that the defendant could not be found. It reversed the judgment as being void under Smith v. Ellendale Mill Co., supra. ³

In the case at bar, the Court of Appeals noted the decision in Smith v. Ellendale Mill Co., supra, and stated that since that decision "the only cases in which an appeal has been allowed from a default have involved improper or nonexistent service." Henry and Henry, 73 Or.App. 188, 191, 698 P.2d 496 (1985).

Neither party nor the Court of Appeals has cited the case of Oregon Lumber & Fuel Co. v. Hall, 76 Or. 138, 148 P. 61 (1915). That was a suit to foreclose a lien. The complaint alleged that several named defendants "claim an interest in and to said property, and that they be required to set up such interests as they may have." One of those defendants "made default," and a decree was eventually entered foreclosing that defendant of all interest in the property. That defendant "moved to open up the default, which being denied, it appeals." 76 Or at 139-40. Neither the opinion nor the appellant's brief, 372 Oregon Briefs 424, gives any clear picture of the assignment of error to which the court spoke. The appellant argued that its failure to answer merely admitted the truth of the allegation above quoted and did not establish what its interest was or where that interest stood in the order of priority of the interests of the various parties. Citing Smith v. Ellendale Mill Co., supra, and Trullenger v. Todd, supra, this court noted as "settled" that an appeal may be taken from a void decree when taken by default. The court then held that the decree was "absolutely void" as to appellant and reversed the decree.

Oregon Lumber & Fuel Co. v. Hall, in turn, was cited in Salem King's Products Co. v. La Follette, 100 Or. 11, 16, 196 P. 416 (1921), overruled on other grounds, for the proposition that "in this jurisdiction a void judgment or decree, even though entered after default, is appealable." In Kerschner v. Smith, 121 Or. 469, 473, 236 P. 272, 256 P. 195 (1927), this court again cited the case for the rule that "[f]rom the beginning, however, this court has recognized that a void default judgment is appealable."

Smythe v. Smythe, 80 Or. 150, 149 P. 516, 156 P. 785 (1916), was a suit for divorce. Defendant was personally served in another state and made no appearance. At that time our statutes required that the district attorney be served with summons in a suit for divorce. No service was made on the district attorney, and the state made no appearance by answer or otherwise. The state appealed from the decree of divorce granted to the wife, contending that the complaint failed to state ultimate facts sufficient to constitute a cause of suit. Plaintiff moved to dismiss the appeal. The court held that the failure to serve the district attorney deprived the circuit court of jurisdiction to hear the cause and also of jurisdiction over the state as a defendant; therefore, the decree was void as to the state and the state was entitled to appeal. Because the decree was void, "the decree cannot be classed as one for want of an answer." 80 Or at 158. Smith v. Ellendale Mill Co., supra, and Trullenger v. Todd, supra, were cited as authority for the holding.

It thus appears that despite the clear text of ORS 19.020, this court has often assumed jurisdiction of an appeal by one who did not answer if the default judgment was void. The reason for doing so appears to rest on the statement from Trullenger v. Todd, supra, quoted in footnote 3, supra. That hardly can be said to be a principled reason. It does no more than to note that appellate courts allow such appeals to purge the records of void judgments. This court has never explained how it obtained any authority to purge such judgments of the trial court.

The legislative text barring appeals by one who has not filed an answer expresses a policy that a defendant cannot simply fail to appear...