Walker v. Walker
Decision Date | 11 April 1929 |
Docket Number | 21724. |
Citation | 276 P. 300,151 Wash. 480 |
Parties | WALKER v. WALKER. |
Court | Washington Supreme Court |
Department 1.
Appeal from Superior Court, King County; Charles P. Moriarty, Judge.
Action by Ernest W. Walker against Vivian A. Walker, in which plaintiff obtained a decree of divorce. From an order setting aside such decree, plaintiff appeals. Affirmed.
C. S Goshert, of Seattle, for appellant.
Arthur H. Hutchinson, Ewing D. Colvin, and Grace O. Dailey, all of Seattle, for respondent.
On August 24, 1927, plaintiff sued defendant for a divorce, and in October of the same year filed his complaint in the office of the clerk of the superior court for King county. No appearance in the action being made by the defendant, an order of default was entered, and on November 28, 1927, after a hearing, the court entered an interlocutory order, which was served on the prosecuting attorney and filed on the date of its entry.
On February 7, 1928, on motion of the defendant, an order was entered in the divorce action requiring the plaintiff to appear and show cause why the interlocutory order above referred to should not be vacated. A hearing was had upon this order to show cause before Judge Robert M. Jones of the superior court for King county, at which oral testimony was introduced by both parties. On March 26, 1928, Judge Jones filed his memorandum decision, in which he expressly found that the parties to the action 'did sporadically cohabit after the entry of the interlocutory decree,' but concluded that, in view of all the circumstances of the case the defendant's petition for vacation of the interlocutory order should be denied. No formal order was at this time entered pursuant to this memorandum decision.
On May 29, 1928, plaintiff filed an affidavit, as follows:
'Ernest W. Walker, being first duly sworn, on oath deposes and says: That he is the plaintiff in the above entitled cause that Findings of Fact, Conclusions of Law and Interlocutory Order were made and entered herein on the 27th day of November, 1927, finding that a decree of divorce ought to be granted to plaintiff; that more than six months have elapsed since the making and entry of said interlocutory order; that plaintiff and defendant have not cohabited as husband and wife since said 27th day of November, 1927; that plaintiff makes this affidavit for the purpose of procuring the final decree of divorce herein.'
On the same day a final decree of divorce in plaintiff's favor was signed by Hon. Charles P. Moriarty, who was then acting as presiding judge.
On June 7, 1928, defendant served upon plaintiff's counsel a notice that she would on June 12 present to Judge Moriarty a motion to set aside the final decree hereinabove referred to. This motion was supported by an affidavit of defendant's counsel. Upon the hearing on defendant's motion, Judge Moriarty intimated that he would grant the same, but suspended his ruling in order that plaintiff might apply to this court for a writ which would prevent his taking such action. Defendant procuring no relief from this court, the matter again came on for hearing before Judge Moriarty, who, on September 15, 1928, entered the following order:
'This matter coming on regularly for hearing upon the motion of the defendant, to set aside the Final Decree, said motion being supported by the affidavit attached thereto and the files in this action; the plaintiff appearing by his attorney C. S. Goshert, the defendant appearing by her attorney, Arthur H. Hutchinson and the prosecuting attorney of King County, State of Washington, appearing by G. O. Dailey, Deputy Prosecuting Attorney and procter of divorce; evidence having been submitted and argument heard and the Court being fully advised in the premises, Now, Therefore,
'It is hereby ordered, adjudged and decreed, that the Final Decree of Divorce be, and the same is hereby set aside.'
From which order plaintiff appeals.
On September 8, 1928, Judge Jones had entered formal findings of fact and conclusions of law based upon the testimony introduced before him and upon which he had entered his memorandum decision of March 26, 1928; finding No. IV reading as follows:
'That since the entry of said interlocutory order of divorce on the 28th day of November, 1927, plaintiff and defendant have not become reconciled and have not resumed marital relations other than that since the said 28th day of November, 1927, plaintiff and defendant have cohabited sporadically but nothing except such sporadic cohabitation indicated any intention on the part of either party of perpetuating the marriage.'
On the same day Judge Jones entered a formal order denying respondent's petition to set aside the...
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