Dallas v. Luster

Bruce, T. This is an action by a wife to vacate a decree of divorce. Though brought after the death of the husband, it is based upon, a theory of property rights, and is instituted in order that the plaintiff may take proceedings to contest the will of her husband and recover her just share of his estate. Being based upon property rights, the action is maintainable. Hite v. Mercantile Trust Co. 156 Cal. 765, 106 Pac. 102; Day v. Nottingham, 160 Ind. 408, 66 N. E. 998. Since there was no legal service upon the wife (the present plaintiff) in the original action, the judgment should be vacated and set aside. There was no personal service upon the then defendant, and no appearance by her or knowledge by her of the proceedings. The affidavit for publication of the summons was altogether insufficient. It was made by the attorney for the plaintiff, and went merely to the extent of the knowledge of that attorney. No attempt was therein made, even upon information and belief, to show that the plaintiff himself had no knowledge of the defendant’s place of residence or address. There was in it no proof or even any statement of any effort, either on the part of the attorney or of his client, to ascertain her whereabouts. There was no proof even of the mailing of a copy of the summons and complaint to the defendant’s last known address. The fact that defendant was not a resident of the state was merely asserted upon the belief of the attorney. The provisions of § 6840, Rev. Codes 1905, relating to service by publication, were, in short, totally ignored. That they must be strictly compliant with them is and should be the invariable rule and holding of this court. Roberts v. Enderlin Invest. Co. 21 N. D. 594, 132 N. W. 145. Nor were the defects cured and the proceedings validated by the subsequent appearance of the defendant wife in the action by a motion in which she prayed for an order to show cause why the judgment entered in the action “should not be vacated and set aside, and why the defendant should not have judgment for a dismissal of said action, and such other and further relief as to the court shall seem just.” This, it is true, was to all intents and purposes a general appearance, - and [454] was made such by the prayer for the dismissal and the further relief. It is true that to be a special appearance it should have stopped at merely asking for the vacation of the judgment. Corbett v. Physicians’ Casualty Co. 135 Wis. 505, 16 L.R.A.(N.S.) 177, 115 N. W. 365; Henry v. Henry, 15 S. D. 80, 87 N. W. 522; William Deering & Co. v. Venne, 7 N. D. 576, 75 N. W. 926; 3 Cyc. 514, 515, 517. It was however, a general appearance merely for the purposes of any further proceedings that might be had on the reinstated action if the motion had been granted and the judgment had been vacated. “It did not relate back so as to validate the void proceedings. Its only effect was to confer jurisdiction over the person of the defendant from its date.” Yorke v. Yorke, 3 N. D. 351, 55 N. W. 1095; Simensen v. Simensen, 13 N. D. 305, 100 N. W. 708. The court having’ overruled the motion and dismissed the order to show cause, “for the reason that plaintiff in said action is dead, and said action, which was an action for divorce, was or would be thereby terminated by the death of said party, and that any property or rights which might be involved by reason of said decree cannot be considered by this court in this proceeding, for the reason that proper parties interested in any property or property rights were not made parties to said proceeding,” the situation was the same as if the motion had never been made. Nothing then precluded the present plaintiff and the then defendant from bringing her own and independent action in equity, in which she could make parties defendant all who had any interest in the matter, and this she has done. Nor should relief be denied her on the ground of laches. She did not learn of the decree until about July 1, 19111 She made her motion to vacate the judgment on or about August 3d, 1911. This motion was denied on September 8th, 1911. On August 5th, 1911, she started proceedings to contest the will of her husband, and on or about the 16th day of March, 1912, she commenced the present action. We find no evidence, in the record, of any unreasonable delay when we consider the necessity of preparing the bill in equity and obtaining the information necessary thereto; nor can we see any ulterior motive therein, or that any material injury has been occasioned to the defendants thereby. We know of no case in which a delay as limited as that in the case at bar has, of and in itself, been held to preclude the plaintiff from obtaining relief. > [455] Having found that the court was entirely without jurisdiction in the divorce proceeding, on account of the want of personal service and an absolute failure to comply with the terms of § 6840, Rev. Codes 1905, when service by publication was sought, it is unnecessary for us to examine the evidence in the case for the purpose of discovering whether the deceased was guilty of fraud in the matter, and whether or not he sought to deceive her in regard to the institution of the proceedings. Nor is it necessary for the plaintiff to now meet or deny the charges in the deceased’s bill of complaint. It is sufficient to say that she was his wife at the time of his decease, and is now his widow. The divorce proceedings abated on his death. The plaintiff is not in default, and never was. She is not required, as a ground for relief, to show evidence of a good and meritorious defense. She merely asks to be relieved of a judgment to which she was not a party in the eyes of the law, and which is not voidable upon consideration merely, but-absolutely void. The same considerations apply, to a greater or less degree, to the claim of the defendant that some of the letters which were introduced by the plaintiff had been tampered with before their introduction. Not only were the facts which were sought to be proven by these letters not necessary to be proved, the lack of service being once shown, but no objection to their introduction was made upon the ground of their alteration. The only objection, indeed, was that they were incompetent and immaterial. The judgment of the District Court is affirmed. Goss, J., being disqualified, did not participate.