Weisgerber v. Prescher

• Decision Date: 04 August 1923
• Citation: 217 P. 615,37 Idaho 653
• Parties: JOHN WEISGERBER, Special Administrator of the Estate of HARRY G. PRESCHER, Deceased, Respondent, v. PEARL R. PRESCHER, Appellant
• Court: Idaho Supreme Court

217 P. 615

37 Idaho 653

JOHN WEISGERBER, Special Administrator of the Estate of HARRY G. PRESCHER, Deceased, Respondent, v. PEARL R. PRESCHER, Appellant

Supreme Court of Idaho

August 4, 1923

ANNULMENT OF MARRIAGE - DECREE - DEATH OF PARTY - SURVIVAL OF ACTION-MOTION TO SET ASIDE DEFAULT JUDGMENT.

1. An action for annulment of marriage, not expressly involving any issues as to property, is extinguished by the death of one of the parties.

2. Such an action cannot be revived by the surviving party for the purpose of having a default judgment set aside.

APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. John M. Flynn, Judge.

Action for annulment of marriage. Appeal from order denying motion to set aside default judgment. Affirmed.

Judgment affirmed, with costs to respondent.

Myrvin Davis, for Appellant.

The tendency of the law being to uphold rather than to tear down the security of the marital relation should be considered as a governing factor in the decision to set aside the default and vacate the decree. (C. S., sec. 4599; Huff v Huff, 20 Idaho 450, 118 P. 1080; Hilton v Stewart, 15 Idaho 150, 128 Am. St. 48, 96 P. 579; State ex rel. Cotter v. District Court, 49 Mont 146, 140 P. 732; Dudley v. Dudley, 151 Iowa 142, 130 N.W. 785, 32 L. R. A., N. S., 1170; 9 R. C. L. 502-508; 5 R. C. L. 1003 et seq.; Commonwealth v. Lane, 113 Mass. 458, 18 Am. Rep. 509; Van Voorhis v. Brintnall, 86 N.Y. 18, 40 Am. Rep. 505; State v. Shattuck, 69 Vt. 403, 60 Am. St. 936, 38 A. 81, 40 L. R. A. 428; In re Chace, 26 R. I. 351, 3 Ann. Cas. 1050, 58 A. 978; Code of Montana, secs. 3607-3609.)

Herman H. Taylor, for Respondent.

An action for divorce or annulment, silent as to property and in which no issue is raised as to property rights, does not affect the status of the property and does not survive the death of a party. (Kirschner v. Dietrich, 110 Cal. 502, 42 P. 1064; Nickerson v. Nickerson, 34 Ore. 1, 48 P. 423, 54 P. 277; Zoellner v. Zoellner, 46 Mich. 511; 9 N.W. 831; Begbie v. Begbie, 128 Cal. 154, 60 P. 667, 49 L. R. A. 141; Hite v. Mercantile Trust Co., 156 Cal. 765, 106 P. 102; Coats v. Coats, 160 Cal. 671, 118 P. 441, 36 L. R. A. N. S., 844; Lima v. Lima, 26 Cal.App. 1, 147 P. 233; Brown v. Brown, 170 Cal. 1, 147 P. 1168; Gloyd v. Sup. Court, 44 Cal.App. 39, 185 P. 995; Dwyer v. Nolan, 40 Wash. 459, 111 Am. St. 919, 5 Ann. Cas. 890, 82 P. 746, 1 L. R. A., N. S., 551.)

MCCARTHY, J. Dunn, William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

MCCARTHY, J.

On August 9, 1915, the appellant, then known as Pearl R. Lancaster, secured a divorce from Wilber E. Lancaster in the district court for Bonner county, Idaho. November 15, 1915, she married one H. G. Prescher at Thompson Falls, Montana. February 2, 1921, Prescher began an action in the district court for Bonner county, Idaho, for an annulment of the marriage claiming that it was null and void because performed within six months after she obtained her divorce. Appellant not appearing in that action a default was entered and also a decree annulling the marriage. October 29, 1921, Harry G. Prescher died. November 11, 1921, appellant filed a motion and affidavit of merits asking that her default be set aside, the decree be vacated and she be allowed to interpose an answer. The ground of her motion was that the default judgment was taken against her through inadvertence and excusable neglect, she claiming that she was induced not to answer by representations, statements and conduct of Prescher tending to show that he did not intend to further prosecute the action. The district court on her motion ordered John Weisgerber, administrator of Prescher's estate substituted as plaintiff in the action. It also denied her motion, basing its action upon the ground that the showing of excusable neglect is not sufficient to justify the court in setting aside the decree. Whether that ground is sound or not it is elementary that the order should be sustained if there is any ground for doing so.

The action was an out-and-out action for annulment with nothing said about property rights. Property rights are not mentioned in the findings nor decree. The only relief granted is the annulment of the marriage. A simple action for divorce is extinguished by the death of one of the parties. ( Kirschner v. Dietrich, 110 Cal. 502, 42 P. 1064; Begbie v. Begbie, 128 Cal. 154, 60 P. 667; Hite v. Mercantile Trust Co., 156 Cal. 765, 106 P. 102; Dwyer v. Nolan, 40 Wash. 459, 11 Am. St. 919, 5 Ann Cas. 890, 82 P. 746, 1 L. R. A., N. S., 551; Zoellner v. Zoellner, 46 Mich. 511, 9 N.W. 831.) On the other hand, if the issues in the action expressly involve property rights the action is not extinguished by death so far as that issue is concerned, but survives. (Lima v. Lima, 26 Cal.App. 1, 147 P. 237; Nickerson v. Nickerson, 34 Ore. 1, 48 P. 423, 54 P. 277.) The same rules apply to an action for annulment. I...