Medina v. Medina

• Decision Date: 27 January 1896
• Citation: 22 Colo. 146,43 P. 1001
• Parties: MEDINA v. MEDINA et al.
• Court: Colorado Supreme Court

43 P. 1001

22 Colo. 146

MEDINA v. MEDINA et al.

Supreme Court of Colorado

January 27, 1896

Error to Douglas county court.

Action by Emma M. Medina against Mary G. Medina and another. Complaint dismissed, and plaintiff brings error. Affirmed.

On the 1st day of December, 1891, Emma M. Medina, plaintiff in error, instituted this action against Mary G. Medina and Frank J. Medina, in the county court of Douglas county, to set aside a certain order entered by that court in an action theretofore pending between Mary G. Medina and Frank J Medina, vacating a decree of divorce rendered therein, and an order dismissing that action. The facts upon which she predicates her right to relief are, in brief, as follows: On the 4th day of April, 1881, in an action pending in the county court of Douglas county, in which Frank J. Medina was plaintiff and Mary G. Medina was defendant, upon an alleged service by publication, an absolute decree of divorce was granted in favor of the plaintiff. Subsequent to the rendition of that decree, and on the 12th day of May, 1881 this plaintiff was married to Frank J. Medina, and commenced living with him as his lawful wife. On the 22d day of July 1881, on motion of Mary G. Medina, the county court vacated and set aside such decree of divorce, and permitted her to appear and answer. On the 6th day of June, 1882, Mary G Medina, having filed her answer, on motion of Frank J. Medina the action was dismissed without prejudice to the bringing of another action. That these motions and orders were made without notice to, and without the knowledge or consent of, this plaintiff in error. That since her marriage with Frank J. Medina she had lived openly with him, as his wife, and that he had openly acknowledged her as his wife for a period of over 10 years, and a child had been born as the fruit of such marriage. That Mary G. Medina, well knowing these facts, had at no time interfered with or claimed that this marriage was illegal, or made any protest against the same. It appears from the record in the divorce suit that the decree was vacated because obtained by perjury and fraud, in this: That plaintiff swore, both in his complaint and in his affidavit to obtain service of summons, that he (the plaintiff) was ignorant of the residence of defendant, which statement was false, and well known to plaintiff to be false; that no copy of summons was mailed to the defendant, as it should have been; and that defendant had no notice whatever that an action was commenced or pending against her until after the decree was rendered. The case was tried to the court, and judgment rendered in favor of defendants, dismissing plaintiff's complaint. To reverse this judgment she prosecutes this writ of error.

Ross & Deweese, Caypless & Fisher, and William Dillon, for plaintiff in error.

Crane, Hoyt & Mason, for defendants in error.

GODDARD J. (after stating the facts).

The controlling question presented by the assignments is whether the county court had jurisdiction to entertain the motion to vacate the decree of divorce after the lapse of the term at which it was rendered. Upon this proposition we entertain no doubt. Even assuming a valid service of the summons was had by publication, the court had jurisdiction to entertain the motion, under section 75 of the Code of 1877 which, inter alia, provides: 'When, from any cause, the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representatives, at any time within six months after the rendition of any judgment in such action, to answer to the merits of the original action.' Plaintiff in error contends that the foregoing provision does not apply to decrees of divorce, and cites in support of this claim McJunkin v. McJunkin, 3 Ind. 30; Lewis v. Lewis, 15 Kan. 181. In McJunkin v. McJunkin the court had under consideration a special act of the legislature, which provided that the practice and proceedings in divorce cases should be the same as in other chancery cases, and whether, by virtue of such provision, decrees of divorce were included in certain sections of the chapter relating to suits in chancery, which provide for the opening of decrees rendered without other notice...