State v. District Court of Fourteenth Judicial Dist. in and for Meagher County

• Court: Montana Supreme Court
• Writing for the Court: COOPER, J.
• Citation: State v. District Court of Fourteenth Judicial Dist. in and for Meagher County, 188 P. 902, 57 Mont. 432 (Mont. 1920)
• Decision Date: 22 March 1920
• Docket Number: 4570.
• Parties: STATE EX REL. THOMPSON v. DISTRICT COURT OF FOURTEENTH JUDICIAL DIST. IN AND FOR MEAGHER COUNTY ET AL.

188 P. 902

57 Mont. 432

STATE EX REL. THOMPSON v. DISTRICT COURT OF FOURTEENTH JUDICIAL DIST. IN AND FOR MEAGHER COUNTY ET AL.

No. 4570.

Supreme Court of Montana

March 22, 1920

Proceeding by the State of Montana, on the relation of Andrew Thompson to restrain the District Court of the Fourteenth Judicial District in and for the County of Meagher and E. H. Goodman Judge thereof, from proceeding further in a certain action. Writ of prohibition ordered to issue.

Miller O'Connor & Miller, of Livingston, and Harry Austin, of Big Timber, for appellant.

Everett E. Lofgren, of Billings, for respondents.

COOPER J.

Andrew Thompson, the relator in this proceeding, on the 3d day of August, 1918, commenced an action for divorce against Inga Thompson by filing a complaint in the district court of the Fourteenth judicial district of the state of Montana in and for Meagher county. In his complaint he alleged that he had been, continuously for a number of years immediately prior to the filing of the complaint, a citizen and resident of Montana; that the defendant had deserted him, and at all times theretofore had been a permanent resident of the kingdom of Norway, and had never been within the United States or the state of Montana to live with him as his wife. It is admitted that copies of the summons and complaint in the divorce action were, on the 3d day of August, 1918 mailed by the clerk of the district court, directed to Inga Thompson, at Egersund, Norway, and received by her there on October 30, 1918; that service of summons was had by publication one each week for four successive weeks in the Meagher County Republican, a newspaper published at the city of White Sulphur Springs, in Meagher county, pursuant to statute; and on September 20, 1918, the defendant, Inga Thompson, having made no appearance, default was on that day taken against her, and a decree of divorce rendered by Hon. John A. Matthews, then the judge of said court, and duly entered.

It appears that on January 2, 1920, Inga Thompson, through her brother Carl Klawson, her attorney in fact, represented by E. E. Lofgren, Esq., an attorney at law, appeared, presented, and filed in that action, under its caption and title, "an affidavit or bill and motion to set aside the said default and to vacate the said decree, and praying for a temporary restraining order," upon which the district court made an order that the plaintiff, Andrew Thompson, show cause on January 30, 1920, in the courtroom in the city of White Sulphur Springs, Meagher county, why an order should not be made setting aside the default, vacating said decree, enjoining relator from transferring any of his property pending the final determination of said action, and requiring him to pay into court a suitable sum for alimony, support, and maintenance of defendant during the pendency of the action, and also for attorney's fees. On January 6, 1920, copies of said affidavit and order were duly served, and on January 30, 1920, a hearing was had thereon, at which the court overruled a motion to strike from the files the written affidavit of Carl Klawson; vacated the default and set aside the judgment of divorce; permitted the filing of defendant's proposed answer denying the plaintiff's charge of desertion; ordered relator to pay "within 30 days from that date the sum of $100 as suit money," and continued in force the temporary order enjoining the transfer or other disposition of his real or personal property pending the action. Upon this state of facts, a writ of prohibition, restraining the district court of Meagher county and Hon. E. H. Goodman, the judge thereof, from proceeding further in said action, is asked.

The relator's contention is that the inquiry here is to be confined to an inspection of the judgment roll; that the evidence disclosing matters extrinsic to the judgment is incompetent, and a proper application of the provisions of section 6589 of the Revised Codes only is involved. The respondents assert that the decree of September 20, 1918, was obtained through the fraud, misrepresentation, and concealment of plaintiff; that the summons served by publication was insufficient to meet the requirements of section 6522 of the Revised Codes; and that the respondents had jurisdiction to make the order.

The judgment roll contains the complaint, the summons, with the sheriff's return of nonservice attached thereto, proof of its publication, the evidence of mailing by the clerk, and the decree awarding the relator a divorce.

Section 6520 of the Revised Codes provides for service of the summons by publication when the defendant resides out of the state. Section 6521 directs how publication shall be made. Section 6522 provides that if service be had by publication "the summons, in addition to the requirements of section 6515 shall contain a general statement of the nature of the action." Section 6515 directs the manner of publication of summons. If the essential requirements of these Code sections were observed in the proceedings we are asked to review, relief can...