Weaver v. Weaver
| Decision Date | 04 February 1911 |
| Citation | 113 P. 599,16 N.M. 98,1911 -NMSC- 013 |
| Parties | WEAVER v. WEAVER. |
| Court | New Mexico Supreme Court |
Syllabus by the Court.
A district court of this territory is without jurisdiction to set aside or vacate a judgment rendered by it which, although voidable, is not void, after one year from the rendition of such judgment has elapsed.
A judgment of a district court purporting to vacate a previous judgment of that court which, although it may be voidable, is not void, is a final judgment, and an appeal from such judgment lies to this court.
Appeal from District Court, Colfax County; before Chief Justice William J. Mills.
Suit by S. J. Weaver against A. M. Weaver. Judgment for defendant and plaintiff appeals. Reversed.
See also, 107 P. 527.
Jones & Rogers, for appellant.
S. B Davis, Jr., for appellee.
ABBOTT J. (after stating the facts as above).
We have first to decide whether this cause is properly here on appeal, and, if we consider that it is, then whether the action of the district court in vacating the decree of divorce shall be approved.
Although it is claimed, in the brief for the appellee, that the judgment of the district court granting a divorce was void, the defendant has, apparently, treated it as voidable rather than void, since in her motion to have it set aside she has gone beyond the averments necessary to sustain it and set out matter which she says would constitute a defense on the merits and asked to be allowed to answer after the vacation of the judgment. By that she submitted her person to the jurisdiction of the court and, while we are not prepared to hold, as counsel for the appellant contend, that she thereby "cured, ratified, and validated the decree" which she was asking to have set aside, we think she might fairly be held to have precluded herself from claiming that it is void for want of jurisdiction of her person and, indeed, to have consented that the court have jurisdiction of the cause. B. Colo. Sanatorium v. Vanston, 14 N.M. 437, 94 P. 945; Atkins v. Disintregating Co., 18 Wall. 298, 21 L.Ed. 841; Hill v. Mendenhall, 21 Wall. 453, 22 L.Ed. 616; Grantier v. Rosecrance, 27 Wis. 488; Burdette v. Corgan, 26 Kan. 104; Shields v. Thomas, 18 How. 259, 15 L.Ed. 368; Henry v. Henry, 15 S.D. 80, 87 N.W. 522.
But, independent of that, we are of the opinion that there is nothing apparent of record to show that the judgment was void. That the court had jurisdiction of the subject-matter is not questioned. It was a court of general jurisdiction, with power to grant divorces to persons who had been residents of the territory for a year next before instituting proceedings for divorce. "The residence of plaintiff, and not that of defendant, gives jurisdiction in divorce cases, although service of process is constructive." 14 Cyc. 588. See, also, 17 Cent. Dig. tit. Divorce; sections 1431-1433, Comp. Laws 1897. It could obtain jurisdiction of the person of a nonresident defendant for the purpose of granting a divorce through publication of notice based on an affidavit as prescribed by law. The affidavit filed in this cause conforms to the requirements of the statute on the subject, in substance, so far as the record shows. The defendant objects to it that it did not state the street address in Rochester, N. Y., of the defendant, and did not state that any means had been taken to ascertain it. But the statute does not require that excuses shall be made unless there is a failure to state the residence of the defendant, and the residence was given as Rochester, N. Y., which made the affidavit complete in form in that particular. It is also objected that the affidavit could not properly be made by the plaintiff's attorney merely for the reason that the plaintiff was not in the county. But the statute allows that. Laws 1901, c. 62, § 22, subsec. 8; Comp. Laws 1897, § 2685 (Code Civ. Proc. subsec. 48).
In addition, an order was made by the court directing publication. That the affidavit was carelessly drawn and should have been more explicit, and that the same is true of the complaint, need not be denied, although the defendant seems to have had no difficulty in understanding the allegations of the complaint well enough to deny each of them specifically in her motion to vacate the judgment. But it is not until we get information from outside of the record that we have any ground for believing that the judgment was voidable and might have been properly vacated on a motion seasonably made. The essential distinction between void judgments and those merely voidable must...
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