Young v. Young

• Decision Date: 01 January 1872
• Citation: 17 Minn. 153
• Parties: ENOCH C. YOUNG v. MARY C. YOUNG.
• Court: Minnesota Supreme Court

Page 153

17 Minn. 153

ENOCH C. YOUNGv.

MARY C. YOUNG.

Supreme Court of Minnesota.

Appeal by defendant from an order of the district court, St. Louis county, refusing to vacate a judgment and grant leave to answer.

Brisbin & Palmer, for appellant.

Smith & Gilman and Egan & Billson, for respondent.

BERRY, J.

Judgment having been rendered dissolving the marriage contract existing between the above-named parties the defendant, Mary E. Young, who did not appear in the action, but was defaulted, made application (January 5, 1871) to the court in which the judgment was rendered, to have said judgment vacated, and that she be permitted to answer, and the case stand for trial as if no judgment had been entered therein. From the order denying her application defendant appeals to this court, as she is authorized to do by subdivision 6, § 8, c. 86, Gen. St., which permits an appeal "from a final order affecting a substantial right made * * * upon a summary application in an action after judgment." The written direction of the court, in this instance, denying the application, being an order not only in terms, but under the statutory definition of an order, (section 1, c. 67, Laws 1867,) there is no foundation of fact on the record for plaintiff's objection that the appeal does not lie, because it is taken from a refusal of an order, and not from an order.

It is claimed in this case that the service of the summons and complaint upon the defendant in the action for divorce, and the subsequent proceedings in and with reference to the action were of such a nature that they operated as a fraud upon the court, and upon the defendant.

This claim is based upon the following facts, among others: In March, 1870, while the parties were residing in this state, at the Dalles of the St. Louis river, an arrangement was made between them in accordance with which defendant was to go to Canada to put herself under medical treatment. On the morning of her departure (March 29, 1870) she was informed by her husband that a summons would be served on her on that day (according to her affidavit.)

It is apparent from other statements in her affidavit that she understood that the summons referred to was a summons in an action for divorce, and the plaintiff swears that he told her that he intended to get a divorce. Soon after, and on the same day, while she and her husband were on their way to the point at which she was to take the stage for Canada, the summons and complaint were served upon her. There is some discrepancy in the accounts given by the parties of the place and manner of service, and as to her examination of the papers, but we do not regard it as important.

On the same day, and shortly after said service, she was driven by her husband to Twin Lakes, at which point she took stage for Tilsonburgh, Canada, arriving there in a few days, and remaining there until some time in the early part of November following, when she was visited by her father, and brought by him to Blue Earth City, in this state, his place of residence.

Her husband left her at Twin Lakes on said March 29th, and she has never seen him since. It also appears that the facts of her departure, and of her residence at Tilsonburgh, were not communicated to her parents, who resided at Blue Earth City, and that they did not learn that the action for divorce had been commenced, or that defendant was not living with plaintiff, or had been sent to Canada, until about November 1, 1870, some two months after the time, (September 3d,) when the judgment of divorce was rendered.

It appears, however, that she was privy to, and desired the concealment of, these matters from her parents, though she swears (and it is not denied) that he requested her to keep the proceedings private, and that at his request she directed her letters to him at Superior, Wisconsin, although he resided in Minnesota near a post-office, he representing to her that it was very important that no one should know where she was.

She also swears (and this is not denied) that he falsely represented to his friends and acquaintances that she had gone on a visit to her father at Blue Earth City, and was there remaining; and that he studiously and purposely concealed the fact that she had been sent to Tilsonburgh in order more effectually to carry out his plan of obtaining a divorce.

It is quite apparent from defendant's letters, and other evidence, that at the time of her departure she was aware of her husband's intention to apply for a divorce, and that during her stay in Canada she was aware that the proceedings had been commenced; and there are very strong reasons for believing that she expected that he would succeed in procuring the divorce; and her confession and letters would appear to show still further that she believed her conduct to have been such that he was entitled to a divorce, and that she had no valid defense to urge against his application for the same.

On the other hand there is nothing to show, and the plaintiff in his affidavit denies that he ever made to the defendant any promises or representations that the proceedings for a divorce would not be consummated, or that a divorce would not be obtained. He also denies that he made any other statements calculated to defraud or mislead her, or throw her off her guard.

It appears, however, from the affidavit of the defendant, that a short time before ...