Wilkins v. Wilkins
| Decision Date | 04 April 1889 |
| Citation | 26 Neb. 235,41 N.W. 1101 |
| Parties | WILKINS v. WILKINS. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. A judgment or decree may be set aside on motion, subsequent to the judgment term, for irregularity in procuring it to be entered.
2. In an action for divorce, where service was had by publication only, the publication of a notice requiring the defendant to answer on or before the second Monday after completed service, instead of the third, as provided by section 110 of the Civil Code, would not prevent the court from acquiring jurisdiction, and a decree rendered in such case would, perhaps, not be open to collateral attack, but would be subject to be set aside on motion, under the provisions of section 602 et seq., Civil Code, as having been irregularly entered.”
Error to district court, Brown county; KINKAID, Judge.Uttley & Benedict, for plaintiff in error.
On the 7th day of September, 1883, plaintiff in error instituted an action in the district court of Brown county against defendant in error, the object of which was to procure a divorce, and for the custody of minor children. Notice was given by publication, and a decree was rendered as prayed, on the 27th day of November, 1883. The ground alleged in the petition, and upon which the divorce was granted, was that of abandonment. On the 2d day of October, 1886, the defendant filed a motion to set aside the decree. The grounds of this motion were that there was irregularity on the part of plaintiff in obtaining the decree: (1) That there was not sufficient proof of publication of notice to give the court jurisdiction; (2) that the petition was not filed at the time stated in the notice; (3) that the publication of the notice was not in compliance with the requirements of law, and that the time fixed therein for answer was the second Monday after the last publication, instead of the third, as required by section 110 of the Civil Code. Notice was duly given to plaintiff of the pendency of this motion. On the 7th day of October, 1886, the motion was heard by the district court, and sustained; the court holding that it did not have jurisdiction of the cause at the time the decree was rendered. The decree was therefore set aside. The cause was brought into this court by plaintiff by proceedings in error.
No brief has been filed by defendant in error, and it is not quite clear as to the exact legal theory upon which the motion was presented to the district court by defendant in error. But as we view the case, as presented by plaintiff in error, the question presented is one of practice. It is insisted by him that, in so far as it is sought to vacate the decree of divorce, the application should have been by petition and summons, under the provisions of section 603 of the Civil Code, and not by motion and notice. This question is not entirely free from doubt. Plaintiff contends that, with the exception of that portion of the order which assumes to retain and exercise jurisdiction over the question of the custody of the minor children, as decided in the former decree, the district court was without jurisdiction, and hence the order setting aside the decree of divorce should be vacated by this court. In the absence of a special provision upon this subject in the chapter on divorce and alimony, we presume the question must be governed by the Civil Code, section 602 of which is as follows: “A district court shall have power to vacate or modify its own judgments or orders after the term at which such judgment or order was made-- First, by granting a new trial of the cause within the time and in the manner prescribed in section 318; second, by a new trial, granted in proceedings against defendants constructively summoned, as provided in section 77; third, for mistake, neglect, or omission of the clerk, or irregularity in obtaining a judgment or order; fourth, for fraud practiced by the successful party in obtaining the judgment or order; fifth, for erroneous proceedings against an infant, married woman, or person of unsound mind, where the condition of such defendant does not appear...
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