McFarlane v. McFarlane

• Decision Date: 08 August 1904
• Citation: 77 P. 837,45 Or. 360
• Parties: McFARLANE v. McFARLANE.
• Court: Oregon Supreme Court

77 P. 837

45 Or. 360

McFARLANE v. McFARLANE.

Supreme Court of Oregon

August 8, 1904

Appeal from Circuit Court, Marion County; R.P. Boise, Judge.

Suit by Elizabeth McFarlane against A. McFarlane.From the decree rendered, defendant appeals.Reversed.

The plaintiff, Elizabeth McFarlane, on February 24, 1899 commenced a suit against defendant for divorce, and, having procured service of summons by publication, took a decree for divorce, a third of his real property, the care and custody of the minor children, and for costs and disbursements.Subsequently, on February 5, 1903, it being ascertained that personal service could be had on the defendant, plaintiff petitioned the court for a modification of the original decree, and for alimony, attorney's fees, an allowance for the support of the minor children, and costs in the original suit, in pursuance of which a citation was issued to the defendant, requiring him to appear and show cause why the prayer of the petition should not be granted.The defendant appeared specially, and challenged the jurisdiction of the court, both as to the person and the subject-matter.The trial court, however, maintained jurisdiction, and, the defendant refusing to plead further, a default was entered against him, and a decree rendered in accordance with the prayer of the petition.The defendant appealed from such decree to this court, where he was in part successful, it being held that the plaintiff was entitled in such supplementary proceeding to a modification of the original decree in so far only as it pertained to an allowance for the support of the minor children, but that the court was without jurisdiction therein to grant alimony, attorney's fees or costs in the original suit.McFarlane v McFarlane,43 Or. 477, 73 P. 203, 75 P. 139.Without entering a final decree, however, the case was remanded to the trial court for such other proceedings as might be found necessary, not inconsistent with the opinion rendered.When the mandate went down, the defendant very promptly appeared and moved the court to set aside the default, with leave to answer, basing the motion upon certain affidavits, with which an answer to the merits on the supplementary petition was tendered.This motion having been denied, and a decree rendered granting an allowance for the support of the minor children, defendant again appeals.

P.H. D'Arcy and Geo. G. Bingham, for appellant.

Carey F. Martin and W.M. Kaiser, for respondent.

WOLVERTON J.(after stating the facts).

The sole question presented for our consideration is whether the circuit court erred in denying defendant's motion to open up the default, and for leave to file an answer to the merits.The application comes within the first, rather than the last, clause of section 103, B. & C. Comp., the purpose of the defendant being to be relieved of a default in failing to answer, and to be allowed to answer after the time limited by the Code, and not to be relieved of a decree entered against him through his mistake, inadvertence, surprise, or excusable neglect.The decree formerly rendered had been vacated on the appeal, and nothing remained in the record but an entry of default against the defendant, and the purpose of the motion was to get rid of this, and to be allowed to answer to the merits, after the time for answering had expired.The case is not widely different from that where simple default, not a judgment or decree, has been entered against a party who has failed to appear when served with a summons, and he applies to be let in to answer to the merits, the defendant here occupying the more pardonable position.Ordinarily, if he presents reasonable grounds excusing his default, the courts are liberal in granting relief, for the policy of the law is to afford a trial upon the merits when it can be done without doing violence to the statute and established rules of practice that have grown up promotive of the regular disposition of litigation.It was the purpose of counsel, by adopting the course pursued, to present two questions: (1) That the court had no jurisdiction of the person because of the supposed defect in...