Smythe v. Smythe

Mr. Justice Eakin delivered the opinion of the court. 1, 2. This is a motion to dismiss an appeal in a suit for a divorce, which was commenced by the filing of the complaint. The defendant, Ignatius Martin Smythe, was a nonresident of the state, and summons was issued to him and returned by the sheriff of Union [152] County, North Dakota, showing personal service in said county; the return being indorsed thereon. The case was tried before the county clerk of Marion County, Oregon, as referee, and findings were made in favor of the plaintiff, and a decree of divorce granted. "Whereupon the district attorney of this county filed a notice of appeal from said decree. The-plaintiff served a motion to dismiss said appeal, in which six grounds therefor are assigned; some being duplicates. First, he contends that the notice does not describe the court to which the appeal is attempted to be taken. This point is disposed of in Smith v. Dwight, decided by this court against plaintiff’s contention, May 18, 1915, ante, p. 1 (148 Pac. 477). It is further alleged that the appellant has filed no undertaking on appeal, but this is disposed of by reference to Section 578, L. O. L., which excuses the state from filing an undertaking. The further objection is made that appellant has no authority in law or legal right to prosecute this appeal. The assignments of error in the abstract are: (1) That the evidence fails to support the findings of fact and conclusions of law; (2) that it fails to support the decree of the court; and (3) that the complaint fails to state a cause of action. It appears from the record before us that no objections or exceptions were taken at the trial to any fact at issue therein. No question was raised as to the sufficiency of the evidence, nor as to that of the complaint. Section 1020, L. O. L., as amended in 1911 (Laws 1911, p. 126), provides: “In any suit for the dissolution of the marriage contract, or to have the same declared void, the state is to be deemed a party defendant, and the party plaintiff in such suit shall cause the summons to be served upon the district attorney of the district within which the suit is commenced, or his duly appointed deputy, at [153] least ten days before the term at which the defendant is required to appear and answer. It shall be the duty of such district attorney, so far as may be necessary to prevent fraud or collusion in such suit, to control the proceedings on the part of the defense, and in case the defendant does not appear therein, or defend against the same in good faith, to make a defense therein on behalf of the state. The court shall not hear or determine any suit for a divorce until service has been made upon the district attorney as herein-before provided, unless the district attorney or his duly appointed deputy waive the provisions of this section by appearing in person at the trial of said cause or by written acknowledgment of service waiving time for his appearance therein. All decrees of divorce heretofore granted in which the requirements of this section have not been complied with, are hereby validated and declared to be legal and binding upon the parties thereto, if otherwise regular.” This record shows upon its face that the district attorney was not served with summons prior to the trial thereof, and therefore the Circuit Court had no jurisdiction to hear and determine the same. It does not show that he appeared in the suit, but, if he did, he has made no objections or taken no exceptions to the rulings therein. In Parrish v. Parrish; 52 Or. 160 (96 Pac. 1066), the duties of the district attorney in such a case are referred to thus: “But a divorce proceeding is sui generis, and necessarily triangular in its nature, consisting of the plaintiff, the defendant, and the state. * * Although not named in the pleadings in the first instance, the state, or the public, is interested in the result, making it the duty of the court to guard against collusion and fraud, and to deny the prayer for divorce, unless sufficient facts properly appear to justify it under the law.” Tn Eggerth v. Eggerth, 15 Or. 626 (16 Pac. 650), it is said: After alleging the marriage of the parties, the continuous residence of the plaintiff in this state for more' than one year next prior to the commencement of the suit, that there are no children the issue of the marriage, that'no property is in any manner involved, and that at all times during their married life plaintiff treated the defendant as a dutiful wife should treat her husband, the complaint concludes with this allegation: “That for more than one year last past the plaintiff and defendant have continuously lived separate and apart from each other, and during all of said time defendant has continuously neglected to properly support plaintiff, or provide her with a home suitable to one in her station of life, and the conduct of defendant for more than one year last past has amounted to continuous and willful desertion of the plaintiff within the meaning of the statutes of the State of Oregon governing divorce proceedings.” “When the district attorney intervenes in behalf of the state in a suit for a divorce,, and files a pleading therein, such pleading is to be governed by the same rules, so far as applicable, by which the defendant’s pleading is governed.” In view of the fact that the district attorney was not served with the summons as required by the statute quoted, and that question was not presented here, the motion will be overruled, with leave to renew it on the argument of the case. Motion Overruled.