Reeder v. Reeder

• Decision Date: 31 May 1951
• Parties: REEDER v. REEDER.
• Court: Oregon Supreme Court

Page 78

232 P.2d 78

191 Or. 598

REEDER v. REEDER.

Supreme Court of Oregon.

Argued May 2, 1951.

Decided May 31, 1951.

L. B. Sandblast, of Portland, argued the cause and filed a brief for appellant.

Robert R. Rankin, of Portland, argued the cause and filed a brief for respondent.

Before BRAND, C. J., and ROSSMAN, LUSK, LATOURETTE and TOOZE, JJ.

LATOURETTE, Justice.

This is an appeal from an order denying defendant's motion to vacate a divorce decree. In the main case, defendant (husband) was served with complaint and summons on September 21, 1948. Two days later he entered a sanitarium to take the liquor 'cure.' He remained in such institution until October 2 of that year. On October 7, default was taken against him, and on October 9, a decree was entered granting plaintiff a divorce. Such decree approved the property settlement agreement (hereinafter referred to as the 'agreement') entered into between the parties on September 20, 1948.

On June 8, 1949, defendant filed his motion to set aside the decree, no grounds being stated therein why such motion should be allowed. His affidavit in support of such motion, among other things, states: 'I therefore submit to the court that this motion is properly construed as being based on mistake or excusable neglect because of my incompetence as stated herein. And I should mention that I did not have the assistance or advise of any attorney in my behalf when the agreement was signed or when the complaint was served on me, and the ten days had elapsed on October 2, 1948, when I was released from the sanitarium and could not do anything about it when I was confined there for the disability stated herein.'

His alleged incompetence is detailed in his affidavit and appears to have resulted at and before the 23rd day of September, from overindulgence in intoxicating liquor 1948, when he entered the sanitarium. He claims in effect that when he signed the agreement in plaintiff's laywer's office and was served with complaint and summons he was non compos mentis, and he accuses his wife of various acts contributing to his excessive drinking.

His affidavit has attached thereto a letter from Doctor John R. Montague which, summarized, states that defendant entered his sanitarium on September 23, 1948, 'in an intoxicated condition.' After detailing defendant's history, the doctor says: 'He showed marked evidence of the toxic phase of alcoholism, with sweating and tremors and was very 'foggy' mentally.'

The doctor next outlines treatment given over a three-day period and concludes by stating:

'During all this period Mr. Reeder seemed quite 'foggy' mentally, but after the third day his condition had improved sufficiently and active treatment by the conditioned reflex method was instituted.

'We do not consider patients competent to sign checks or execute other business affairs until they are off a regular whiskey ration.'

Since the doctor's letter was not under oath, it is entitled to slight, if any, consideration; however, taking it at its face value, there is nothing therein which would throw any light on defendant's condition at the time defendant signed the agreement and was served with complaint and summons. It does, however, imply that when off a whiskey ration, patients are competent to execute business affairs. Defendant avers that he has not had a drink since leaving the hospital.

On the other side of the picture, we have plaintiff's affidavit and the affidavits of two persons who were present when the agreement was signed, completely negativing defendant's claims.

A trial court's order, when entertaining a motion to...