Smith v. Smith, 6737.

• Decision Date: 28 June 1941
• Docket Number: No. 6737.,6737.
• Citation: 71 N.D. 110,299 N.W. 693
• Parties: SMITH v. SMITH.
• Court: North Dakota Supreme Court

71 N.D. 110

299 N.W. 693

SMITH

v.SMITH.

No. 6737.

Supreme Court of North Dakota.

June 28, 1941.

Syllabus by the Court.

1. A motion to open up or vacate a judgment is addressed to the sound, legal discretion of the trial court.

2. Where a party seeks relief from a judgment upon the ground that it was obtained by fraud, it is proper to present the matter by application or motion in the original action.

3. When an application is presented to vacate or open up a judgment and the court by order fixes a time for hearing the application and the issues formed by affidavits presented in resistance thereto, such an order does not come within those designated as appealable by section 7841, Comp.Laws N.D.1913. It neither grants a new trial nor involves the merits of the action or any part thereof.

4. Section 4405, Comp.Laws N.D.1913 does not authorize the modification of a decree rendered in a divorce action where no change in conditions or circumstances of the parties since the original adjudication is alleged.

Appeal from District Court, Ward County; G. Grimson, Special Judge.

Action for divorce by J. L. Smith against Rae Smith, wherein plaintiff obtained a decree of absolute divorce. Thereafter the defendant filed a petition praying that the decree be opened up in so far as property settlement was concerned, that the settlement incorporated in the decree be set aside, and that the defendant be awarded a just and equitable share of the property. From an order overruling plaintiff's objections to hearing the petition and directing that the issues framed by the petition and the affidavits in reply thereto be set for hearing, the plaintiff appeals, and the defendant moves for dismissal of the appeal.

Motion to dismiss granted.

E. R. Sinkler and G. O. Brekke, both of Minot, for appellant.

B. R. Bradford, of Minot, for respondent.

MORRIS, Judge.

On May 20, 1936, the plaintiff was granted an absolute divorce from the defendant. The divorce decree adopted, approved and made a part of the judgment, a written stipulation made by and between the parties dividing the property and providing for the payment by the plaintiff to the defendant of the sum of four thousand dollars ($4,000) in certain stipulated installments. The instrument incorporated into the judgment recited that “the above stipulation is made as a full and complete property settlement between the parties hereto, and that the Court, in case a divorce is granted, may take cognizance of said stipulation.”

On August 23, 1940, the defendant presented to the District Court of Ward County, being the court in which the judgment was entered, a petition praying that the decree be opened up insofar as the property settlement is concerned, that the contract of settlement incorporated in the decree be set aside and annulled and that the defendant be awarded a just and equitable share of the property according to its value as of May 6, 1936. That date was the date of the trial resulting in the entry of the decree.

Upon presentation of the petition Hon. John C. Lowe, a judge of the district court aforesaid, issued an order to the plaintiff to show cause why the petition of the defendant should not be granted. The order to show cause was heard before Hon. G. Grimson at which time the plaintiff resisted the application by affidavits duly presented to the court controverting the material parts of the application. In his memorandum opinion, the court says that he has “come to the conclusion to grant this application, as far as having a hearing on it is concerned.” The court thereupon entered an order overruling the plaintiff's objections to hearing the petition and directing that the issues framed by the petition and the affidavits in reply thereto be set for hearing “at which hearing the parties may present evidence in support of the Petition and Return aforesaid.” The matter now comes to us upon appeal by the plaintiff from this order.

The defendant moves in this court for a dismissal of the appeal upon the ground that Judge Grimson's order setting the matter for hearing is not appealable. It is claimed that the order is not appealable for two reasons: First, that it is interlocutory in its nature; second, that it does not come within the list of appealable orders set forth in section 7841, Comp.Laws N.D.1913. In support of the first proposition, the defendant cites Ostlund v. Ecklund, 42 N.D. 83, 171 N.W. 857. Upon this point the plaintiff argues that the order in question, in effect and in fact, is an order granting a new trial which is specifically made appealable by par. 3 of section 7841, Comp.Laws.

[1] If the effect of the order is to grant a new trial, as the plaintiff contends, it is appealable under the provisions of the statute. We do not so construe the order. We will assume in the absence of a showing to the contrary that the court intended to follow the regular and orderly course of procedure applicable to the situation presented by the petition and the opposing affidavits. The petition seeks to have the judgment opened up and to have a re-examination of those matters pertaining to the property settlement as of the date on which the original trial was had. The plaintiff resists this move on the part of the defendant. The first issue to be determined by the trial court is whether the judgment should stand unmolested or whether it should be opened up for the taking of further testimony and for further consideration by the court on matters pertaining to the division of property. The order does not open up the judgment. It merely sets for hearing the question of whether the judgment shall be opened up. It is, therefore, a preliminary order that does not grant a new trial.

The second ground urged in support of the motion to...