Smythe v. Smythe

• Citation: 80 Or. 150,156 P. 785
• Parties: SMYTHE v. SMYTHE.
• Decision Date: 18 April 1916
• Court: Supreme Court of Oregon

156 P. 785

80 Or. 150

SMYTHE v. SMYTHE.

Supreme Court of Oregon

April 18, 1916

In Banc.

Appeal from Circuit Court, Marion County; Wm. Galloway, Judge.

Action by May Macombe Smythe against Ignatius Martin Smythe. From a decree of divorce in favor of plaintiff, the State of Oregon appeals. Reversed, and suit dismissed.

In this suit for divorce, after alleging the marriage of the parties the continuous residence of the plaintiff in this state for more than one year next prior to the commencement of the suit, that there are no children the issue of the marriage that no property is in any manner involved, and that at all times during their married life plaintiff treated the defendant as a dutiful wife should treat her husband, the complaint concludes with this allegation:

"That for more than one year last past the plaintiff and defendant have continuously lived separate and apart from each other, and during all of said time defendant has continuously neglected to properly support plaintiff, or provide her with a home suitable to one in her station of life, and the conduct of defendant for more than one year last past has amounted to continuous and willful desertion of the plaintiff within the meaning of the statutes of the state of Oregon governing divorce proceedings."

There was no appearance for the defendant husband. The cause was referred to a referee to hear the testimony and report the same to the court. On March 13, 1915, the court entered a decree in these words:

"Based upon the findings of fact and the conclusions of law filed in the above-entitled cause and court, it is ordered adjudged, and decreed by the court that the bonds of matrimony heretofore existing between the plaintiff Macombe Smythe, and the defendant, Ignatius Martin Smythe be, and the same are hereby, dissolved and held for naught."

The state appealed. In an opinion by Mr. Justice Eakin, 149 P. 516, a motion of the plaintiff to dismiss the appeal was overruled, with leave to renew the same at the argument.

Ernest R. Ringo, Dist. Atty., of Salem, for the State. Carey F. Martin, of Salem (Ivan G. Martin, of Salem, on the brief), for respondent.

BURNETT, J. (after stating the facts as above).

Section 1020, L. O. L., as amended by chapter 86, Laws 1911, reads thus:

"In any suit for the dissolution of the marriage contract, or to have the same declared void, the state is to be deemed a party defendant, and the party plaintiff in such suit shall cause the summons to be served upon the district attorney of the district within which the suit is commenced, or his duly appointed deputy, at least ten days before the term at which the defendant is required to appear and answer. It shall be the duty of such district attorney, so far as may be necessary to prevent fraud or collusion in such suit, to control the proceedings on the part of the defense, and in case the defendant does not appear therein, or defend against the same in good faith, to make a defense therein on behalf of the state. The court shall not hear or determine any suit for a divorce until service has been made upon the district attorney as hereinbefore provided, unless the district attorney or his duly appointed deputy waive the provisions of this section by appearing in person at the trial of said cause or by written acknowledgment of service waiving time for his appearance therein. All decrees of divorce heretofore granted in which the requirements of this section have not been complied with, are hereby validated and declared to be legal and binding upon the parties thereto, if otherwise regular."

It is admitted that the summons was not served on the district attorney. Neither did he answer, demur, or give the plaintiff written notice of his appearance, as permitted by section 542, L. O. L., defining appearance. The only thing before us on that feature is this statement in the record:

"Now on this 27th day of February, 1915, the above-entitled cause coming on regularly for hearing, before U. G. Boyer, referee herein, the plaintiff appearing in person, as well as by her attorney, Carey F. Martin, and the defendant, although regularly and personally served with summons and complaint, outside of the state of Oregon, more than six weeks prior to this date, comes not, but makes default herein, which default of said defendant is now at this time entered of record against him, and the state of Oregon appearing by the district attorney for Marion county, Or., and after hearing the testimony of the plaintiff, and other evidence on her behalf and the suggestions of counsel, and said referee's report to this court, the court makes the following findings of fact."

Then follows what is practically a repetition of the complaint as findings of fact and as a conclusion of law, a finding that the plaintiff is entitled to a decree of divorce, all of which was signed by the judge on March 13, 1915.

The statute provides for obtaining jurisdiction of the state as a defendant by the service of summons like any other party. The state through its proper officer may waive the service of summons and submit itself to the judicial authority as provided in section 542, L. O. L., by demurring, answering or giving the notice there mentioned, or as stated in section 1020, by the district attorney appearing in person at the trial of the cause. The record recites only that the district attorney...