Reeker v. Reeker, 32735

• Decision Date: 16 February 1950
• Docket Number: No. 32735,32735
• Citation: 41 N.W.2d 231,152 Neb. 390
• Parties: REEKER v. REEKER.
• Court: Nebraska Supreme Court

Page 231

41 N.W.2d 231

152 Neb. 390

REEKER v. REEKER.

No. 32735.

Supreme Court of Nebraska.

Feb. 16, 1950.

Syllabus by the Court.

1. By section 42-340, R.S.1943, either party to a divorce action may within six months of the date of entry of decree make application to have the decree set aside or modified.

2. If a motion to set aside or modify a decree of divorce is made pursuant to statute, the court may in the exercise of a sound discretion grant it and vacate or modify the decree.

3. Affidavits used in the district court upon the hearing of a motion and not preserved in a bill of exceptions will not be considered on appeal.

Thomas E. Conley, Omaha, George Evens, Omaha, for appellant.

Frederick M. Deutsch, Norfolk, R. J. Shurtleff, Norfolk, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

YEAGER, Justice.

This action was commenced as one for divorce by Enest L. Reeker, plaintiff and appellee here, against Cecilia G. Reeker, defendant and appellant here. After a trial to the court a decree was entered granting a divorce to plaintiff.

Though the briefs of appellant would indicate otherwise an examination of the transcript discloses that this is not an appeal from the decree of divorce. It is only an appeal from an order of the court refusing under its discretionary power to vacate and set aside the decree within six months of the date of entry thereof.

The decree granting the divorce was entered July 14, 1949. On August 6, 1949, a decree was entered fixing permanent alimony for the defendant and confirming the decree of divorce entered July 14, 1949. On August 17, 1949, the defendant filed a motion for new trial. This was not filed within the time provided by law for the filing of motions for new trial and it was withdrawn by the defendant on September 3, 1949. The motion for new trial was refiled on September 3, 1949, but of course this was of no avail. On August 29, 1949, the defendant filed a motion to vacate the decree which was termed an amended and substituted motion. Two previous such motions had been filed and overruled. They had however been filed before August 6, 1949, the date of the entry of decree fixing alimony and confirming the decree for divorce. This final motion to vacate was overruled on September 3, 1949. No motion for new trial was filed attacking the ruling on the motion. An appeal was however taken from the ruling.

The defendant predicated her application to have the decree vacated upon section 42-340, R.S.1943, which permits of an application to vacate or modify a decree of divorce within six months from the trial and decision by either of the parties. Pittman v. Pittman, 148 Neb. 864, 29 N.W.2d 790, 794. Her theory is that the trial court abused its discretion in refusing and failing to grant her application.

In the opinion in Pittman v. Pittman, supra, it was said: 'The statute correctly interpreted and applied permits either party to a divorce action within six months of the date of entry of decree to make application to have the decree set...