Rice v. Rice

• Decision Date: 04 June 1928
• Docket Number: 4921,4885
• Citation: 267 P. 1076,46 Idaho 418
• Parties: LAKE C. RICE, Appellant, v. ALTA E. RICE, Respondent
• Court: Idaho Supreme Court

267 P. 1076

46 Idaho 418

LAKE C. RICE, Appellant, v. ALTA E. RICE, Respondent

Nos. 4885, 4921

Supreme Court of Idaho

June 4, 1928

JUDGMENT-MOTION TO VACATE-TIME-DIVORCE-COMPLAINT-NAMING PARTICEPS CRIMINIS.

1. Unless a judgment is void on the face of the record, court has no power to set it aside on motion after expiration of statutory time for vacating judgment which, under C. S., sec 6726, as amended by Laws 1921, chap. 235, in cases wherein defendant was not personally served with process, is one year within entry of judgment.

2. Every reasonable intendment will be had in favor of sufficiency of allegation in complaint when not attacked by demurrer.

3. An obviously clerical defect in complaint in divorce action in allegation of prior marriage of parties, being amendable held not such defect as would render complaint insufficient to withstand subsequent motion to set aside judgment after statutory time for vacating it.

4. Allegation in complaint for divorce of commission of adultery by defendant, stating the time and place, but not alleg- ing name of person with whom defendant was charged with having committed adultery, held sufficient to support decree of divorce, since defendant had ample opportunity to procure such information by demurrer, and, under C. S., sec 4641, court is required on default of defendant to demand proof of facts alleged requiring establishing of specific act by evidence.

5. Order purporting to vacate a judgment of divorce after judgment had become final and time for motion to set it aside had elapsed was without jurisdiction and constituted a mere nullity.

6. Order of court, purporting to set aside judgment of divorce obtained by husband, constituting a mere nullity in that time for motion to set it aside had elapsed, did not have effect of restoring action to the status of pending suit, so as to authorize award of suit money to wife in accordance with C S., sec. 4642.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. R. M. Terrell, Judge.

Appeals from orders vacating decree of divorce and granting suit money. Reversed.

Both the orders reversed, and costs awarded to appellant.

C. M Jeffery, for Appellant.

Where the court has jurisdiction of the subject matter and of the parties, the trial court is without jurisdiction or authority to modify or vacate a judgment more than six months after the term, where personal service has been had, and more than twelve months after the entry of judgment where personal service has not been had. (C. S., sec. 6726, as amended by Sess. Laws 1921, chap. 235, p. 526; Mathers v. Mathers, 40 Idaho 189, 248 P. 469; Howell v. Howell, 104 Cal. 45, 43 Am. St. 70, 37 P. 770; Nixon v. Tongren, 33 Idaho 287, 193 P. 731.)

A court may set aside and vacate a judgment after the statutory time only where the judgment is void upon the face of the judgment-roll. (Nixon v. Tongren, supra; Miller v. Prout, 33 Idaho 709, 197 P. 1023; People v. Dodge, 104 Cal. 487, 38 P. 203.)

A judgment will not be vacated or set aside for mere technical defects in the complaint, and such defects are cured by the judgment. (2 Cal. Jur. 1011; 14 Cal. Jur. 970; Kerr v. O'Keefe, 133 Cal. 415, 71 P. 447; Cutting Fruit Packing Co. v. Canty, 141 Cal. 692, 75 P. 564; Hallock v. Jaudin, 34 Cal. 167.)

Every reasonable intendment is indulged in favor of the sufficiency of the complaint, and all inferences of facts which may be drawn from the facts alleged must be deemed within reasonable limits to be alleged, unless specially attacked by demurrer or motion. (Miller v. Prout, supra; Mode v. Myers, 30 Idaho 159, 164 P. 91; Newport Water Co. v. Kellogg, 31 Idaho 574, 174 P. 602; Smith v. Neeley, 39 Idaho 812, 231 P. 105; McCormick v. Smith, 23 Idaho 487, 130 P. 999.)

An allegation that defendant committed adultery at divers times and places with unknown persons in a specified city, though subject to special demurrer, is sufficient in the absence thereof. (Conant v. Conant, 10 Cal. 249, 70 Am. Dec. 717.)

J. Wesley Holden, for Respondent, files no brief.

BRINCK, Commissioner. Varian and Baker, CC., concur.

OPINION

BRINCK, Commissioner.--

Plaintiff brought suit for divorce from defendant upon the ground of adultery. Decree was entered granting the divorce August 21, 1924. Defendant did not appear and her default was entered prior to the rendition of the decree. Summons had been served by publication under an order duly made upon sufficient showing. On May 28, 1926, the defendant gave notice of her motion to vacate the decree upon the ground that the complaint did not state facts sufficient to constitute a cause of action and upon other grounds not involved in this appeal. The court granted the motion solely upon the ground that the complaint did not state a cause of action and entered an order setting aside the judgment, from which order the plaintiff appealed. The trial court, upon defendant's application, then made a further order that the plaintiff pay her certain attorney's fees and suit money for her use upon such appeal, and from this order likewise the plaintiff appealed. Both of said appeals are presented at this time.

The theory upon which the order vacating the judgment was made was of course that the judgment was void upon its face, because of the supposed failure of the complaint to state a cause of action.

Unless a judgment is void upon the face of the record, the court has no power to set it aside on motion made after the statutory time for vacating a judgment, which is one year after the entry of the judgment in cases wherein the defendant was not personally served with process. (C. S., sec. 6726, as amended by Sess. Laws 1921, chap. 235; Nixon v. Tongren, 33 Idaho 287, 193 P. 731; Commonwealth Trust Co. v. Lorain, 43 Idaho 784, 255 P. 909.)

An obviously clerical defect in the allegation of the prior marriage of the parties is relied on as vitiating the complaint. The intent of the pleader is perfectly apparent the defect was amendable, and every reasonable intendment will be had in favor of the sufficiency of the allegation...