McCanna v. McCanna
| Decision Date | 20 May 1914 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Ramsey County, Cowan, J. Reversed.
Decree reinstated.
F. T Cuthbert and A. R. Smythe, for appellant.
There is a clear and conclusive showing in the record here presented, that the trial court abused its discretion in setting aside the decree and reopening the judgment. There was no valid ground shown or established for such action. 11 Enc. Pl. & Pr. 1170, 1180--1182, 1184--1187.
Taylor Crum, for respondent.
The discretionary power of the court to reopen judgments will not be interfered with except in clear cases of abuse. Yorke v. Yorke, 3 N.D. 343, 55 N.W. 1095; Weber v Tschetter, 1 S.D. 216, 46 N.W. 201; Wheeler v. Castor 11 N.D. 347, 61 L.R.A. 746, 92 N.W. 391.
Such orders are not disturbed as a rule. Pengilly v. J. I Case Threshing Mach. Co. 11 N.D. 249, 91 N.W. 63, 12 Am. Neg. Rep. 619; 15 Enc. Pl. & Pr. 281, 282; Racine-Sattley Mfg. Co. v. Pavlicek, 21 N.D. 229, 130 N.W. 228, and cases cited; Cline v. Duffy, 20 N.D. 537, 129 N.W. 75.
As a general rule, where the moving party makes a clear showing that he has a good cause of action or defense, on its merits, the trial court cannot, in the exercise of a sound discretion, deny to him the relief asked. Richardson v. Richardson, 4 Port. (Ala.) 467, 30 Am. Dec. 545.
The state has an interest in maintaining the rules which have been presented by the proper authority concerning marriages and divorces, which interest it is the duty of the courts to protect. Wiemer v. Wiemer, 21 N.D. 371, 130 N.W. 1015; Yorke v. Yorke, 3 N.D. 343, 55 N.W. 1095.
A judgment fraudulently taken may be set aside on motion. 1 Black, Judgm. 320; Yorke v. Yorke, supra; Haverty v. Haverty, 35 Kan. 438, 11 P. 364; True v. True, 6 Minn. 458, Gil. 315; Young v. Young, 17 Minn. 181, Gil. 153; Colby v. Colby, 59 Minn. 432, 50 Am. St. Rep. 420, 61 N.W. 460; Daniels v. Benedict, 50 F. 351.
The trial court found that the divorce was fraudulent, or at least one obtained through the mistake and legal inexperience of the girl,--grounds which are contemplated by our law. Rev. Codes 1905, §§ 4056, 4058, 6884; True v. True, 6 Minn. 458, Gil. 315; Mulkey v. Mulkey, 100 Cal. 91, 34 P. 621; Danforth v. Danforth, 105 Ill. 603; Singer v. Singer, 41 Barb. 139.
Plaintiff and defendant were married February 18, 1911, and shortly thereafter went to live upon a farm owned by plaintiff's father, near Cando, North Dakota. It appears from the record that plaintiff's parents are very well-to-do, and that plaintiff is very much addicted to drinking intoxicating liquors and gambling. The couple resided together upon the said farm until about the 9th day of October, 1911, when plaintiff brought an action for divorce. Service of the summons and complaint is admitted in writing under date of October 9, 1911, and an answer was interposed the same day, signed by J. J. Sampson, an attorney at law. On the 14th day of October, 1911, hearing was had before the Honorable John F. Cowan, Judge of the district court, upon stipulation of the parties. Findings of fact and conclusions of law favoring the plaintiff were signed by the judge the same day and filed with clerk of court May 3, 1912. Thereafter and on January 12, 1912, defendant applied to the same court to have the judgment opened upon the grounds and for the reason that the divorce "was obtained by fraud, coercion, and deceit; also on the ground that the testimony upon which said decree was granted was in part untrue and insufficient in law to authorize the court to grant such judgment and decree; also on the ground that there was no service of the summons and complaint served upon the defendant giving the court jurisdiction of the subject-matter of said action; also upon the ground that no attorney was authorized by defendant to appear or act for her in said action." In support of this motion, defendant offered her own affidavit as well as an affidavit of her sister. Plaintiff filed affidavits of himself, his father, his mother, his attorney, and the attorney who appeared for defendant. On the 30th day of November, 1912, the trial court entered an order to the effect "that the judgment and decree of divorce heretofore entered in this action, . . . be and the same is here vacated, set aside, and held for naught, and the defendant is allowed thirty days from the date of the service of this order upon plaintiff's attorney in which to plead to the complaint." This appeal is from such order. The grounds upon which the trial court granted relief are not stated in the order, so we are under the necessity of reviewing each of the grounds alleged in the motion. We are aware that trial courts are clothed with large discretionary powers in matters of this kind, and their findings should not be disturbed excepting for a clear abuse of discretion. In this case we believe the proof against the application so overwhelming that the trial court abused its discretion in making the order aforesaid.
(1) The first ground for the opening of the case is that the decree was obtained by fraud, coercion, and deceit. The affidavits upon which the order was based are of such length that it will be impossible to reproduce them here. The affidavit of the defendant is to the effect that she and her husband, during the latter part of September, 1911, had had some unpleasant words regarding his conduct with another woman; that she had told him that if he liked this other girl so well--better than he liked his wife--that she would go away and leave him, but that the husband had begged her not to go. That shortly afterwards she went to Cando, met his father, and told him of the trouble she had had with her husband; that the father had told her the best thing to do was to separate; that he was unable to do anything towards making her husband treat her right. Affiant told him that she did not wish to leave her husband; that the next day her father-in-law came to the house and told her that the best thing to do was to go to Devils Lake and get a divorce right away, and that they finally all went there in an automobile that her mother-in-law told her that she might just as well let him get a divorce--that he would get it anyway, but that affiant replied that there was nothing against her excepting what her husband knew before their marriage. That her father-in-law told her that if she would let her husband get a divorce he would give her half of the crops, and also help her, and see that she never wanted for anything; that thereafter they went down to a lawyer's office, who took her along into a private office and persuaded her to sign an admission of service upon summons; the nature of which, however, she alleges she did not comprehend; that thereafter the father and mother-in-law took her to a cafe for supper and told her that a divorce had been granted; that notwithstanding the divorce, her husband had continued to write loving letters to her, and that they had on several occasions cohabited as husband and wife. The letters and postal cards referred to by her are made part of the record, and contain many terms of endearment. In a supplemental affidavit, defendant claims that Attorney Sampson admitted to her that he had been employed by her father-in-law. Her sister's affidavit is to the effect...
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