Mayer v. Mayer

• Decision Date: 08 April 1895
• Citation: 39 P. 1002,27 Or. 133
• Parties: MAYER v. MAYER.
• Court: Oregon Supreme Court

39 P. 1002

27 Or. 133

MAYER v. MAYER.

Supreme Court of Oregon

April 8, 1895

Appeal from circuit court, Benton county; J.C. Fullerton, Judge.

Action by John Mayer against Rebecca J. Mayer for divorce. Service by publication. Defendant did not appear. Judgment for plaintiff. Defendant afterwards appeared, and filed motion to be relieved from decree, and to be let in to defend. Motion denied. Defendant appeals. Affirmed.

J.W Metcalf, for appellant.

John M. Somers, for respondent.

BEAN C.J.

This is an appeal by the defendant from a decree of divorce rendered on November 15, 1893, without any appearance by her, or service of process, except by publication in a newspaper. In April, 1894, she appeared and filed a motion supported by affidavits, asking to be relieved from such decree and to be let in to defend the suit. The motion was denied, and hence this appeal.

In support of the motion it is contended that the court below did not have jurisdiction of the defendant at the time the decree was rendered, because the proceedings for the publication of the summons were defective. But the motion was not to vacate the decree on jurisdictional grounds, but to be let in to defend the suit, and was therefore a waiver of all irregularities in the service of process. A defendant may appear specially to object to the jurisdiction of the court over him, or to set aside a default or judgment as void for want of service of process, without submitting himself to the jurisdiction of the court for any other purpose. Kinkade v. Myers, 17 Or. 470, 21 P. 557. But when he appears and asks some relief which can be granted only on the assumption that the court has jurisdiction of his person, he will be deemed to have entered a general appearance, and submitted himself to the jurisdiction of the court, as completely as if regularly served with process. Belknap v. Charlton, 25 Or. 41, 34 P. 758, and authorities cited. And this is so although his appearance may be after judgment is entered against him. Burdette v. Corgan, 26 Kan. 102; Leake v. Gallogly, 34 Neb. 857, 52 N.W. 824; Gray v. Gates, 37 Wis. 614; Grantier v. Rosecranze, 27 Wis. 488. The motion in this case did not challenge the decree on jurisdictional grounds alone, but it was a general motion, under section 58, Hill's Ann.Laws, to set aside the decree, and for leave to defend; and she attempted, by her affidavits, to show "good cause" why she should be permitted to do so. Such an appearance concluded her from further questioning the decree on jurisdictional grounds. "A party cannot come into court," says Brewer, J., in Burdette v. Corgan, supra, "challenge its proceedings on account of irregularities, and, after being overruled, be heard to say that he never was a party in court, or bound by those proceedings. If he was not in fact a party, and had not been properly served, he can have the proceedings set aside on the ground of want of jurisdiction, but he must challenge the proceedings on that single ground. This is familiar doctrine."

We come, then, to the question as to whether, under the showing made by the defendant, the court below erred in overruling her motion. Section 58, Hill's Ann.Laws, provides that the defendant against whom publication is ordered may "upon good cause shown and upon such terms as may be proper be allowed to defend after judgment and within one year after the entry of such judgment." There is some conflict in the decisions as to whether statutes similar to this are mandatory, so as to entitle a defendant who brings himself within their provisions to appear and defend as a matter of right, or whether the application is addressed to the sound discretion of the court, and will be interfered with by an appellate court only in cases of an abuse of discretion. The former rule seems to prevail in Wisconsin,--Berry v. Nelson, 4 Wis. 391; Pier v Millerd, 63 Wis. 33, 22 N.W. 759,--while the courts of Minnesota take the latter view,--Washburn v. Sharp, 15 Minn. 63 (Gil. 43); Frankoviz v. Smith, 35 Minn. 278, 28 N.W. 508. But we do not think...