R v. R

Vacating judgment of divorce. 1. There is nothing in our statutes to prevent a court from vacating a judgment of divorce from the bond of matrimony, at the same term, for cause shown. 2. Whether, where jurisdiction of the defendant’s person has been acquired, such a judgment may be vacated at a subsequent term, either by virtue of the court’s inherent power over its own judgments, or under sec. 38, chap. 125 R. S. (where the application is made under that section), or whether this is prohibited by sec. 10, chap. 124, R. S., is not here decided.

APPEAL from tbe Circuit Court for Milwaukee County. Tbis was an action for divorce from tbe bond of matrimony, for alleged adultery of tbe wife; and tbe defendant being, at tbe time of its commencement, resident at Cassel, Germany, tbe summons was served in July, 1865, by jDublication and by mailing a copy to ber at that place. There being no answer or ajspearance on ber part, and evidence having been taken and reported by a referee, tbe court rendered a judgment of divorce, as prayed for, on tbe 30th of September, 1865. An important part of tbe evidence relied upon was a letter, purporting to have been written by tbe defendant to tbe plaintiff from Cassel, June 25th, 1865, containing confessions as to tbe adulterous acts charged. Tbe plaintiff and another witness testified to tbe band writing, &c., and tbe latter gave an English translation of tbe letter. Tbe German, original was abstracted from tbe files of tbe circuit court at some time after tbe judgment was rendered; by whom, does not appear. Afterwards, during tbe same term, on certain affidavits of friends and relatives of tbe defendant, and of F. C. Winkler, Esq., who appeared as ber attorney, plaintiff was ordered to show cause why the judgment should not be vacated, and defendant be permitted to answer. Tbe affidavits tended to show that tbe defendant was not aware of tbe commencement of tbe action in time to answer or appear before judgment; and that tbe letter above mentioned was a forgery. On tbe bearing, tbe court vacated tbe judgment, and permitted tbe defendant to answer; and from tbis order tbe defendant appealed. contended that sec. 38, chap. 125, R. S., is a general provision for ordinary civil causes, and cannot fairly be applied to special cases otherwise provided for by other statutes ; nor to cases in which tbe vacating of a judgment would be contrary to tbe general policy of our laws. 2. From sec. 10, chap. 124, and from chap. Ill, R. S., they argued that tbe policy of our statute was to make a decree of divorce, once pronounced, however unjust, final, and not permit it to be set aside. 8. They argued, that tbe application bere was not under sec. 88, cbap. 125, there being no evidence of mistake, inadvertence, surprise or excusable neglect, but was clearly under sec. 10, cb. 124, that being tbe provision which relates to cases of service of summons by publication and mailing, and the attempt in this case being to show that defendant had not received the summons. But that section expressly excepts actions for divorce. 4. They argued that the affidavits on which the motion was granted, were entirely insufficient to raise a reasonable doubt as to the correctness of the evidence on which the judgment was founded; and that the motion should have been denied because it was not made by authority of the defendant herself, nor with any evidence that when she should be heard from, she would desire to defend. to the point that, aside from statutory provisions, the court has complete control over its own judgments rendered at the same term, cited Ca/rley v. Oar-ley, 7 Gray, 545; Parish v. Parish, 9 Ohio St., 534; Doss v. Tyaclc, 14 How. (U. S.), 297 ; Bobinson v. Gomm’rs, 12 Md., 132 ; Butherford v. Pope, 15 id., 579 ; 22 IÍL, 203 ; Obenchain v. Oomegys, 15 IncL, 496. See also Allen v. Maclellan, 12 Pa. St., 328 ; Hoffman v. Hoffman, 30 Pa. St., 417 ; Smith v. Smith, 20 Mo., 166; Mansfield v. Mansfield, 26 id., 163 ; Smith v. Smith, 4 C. Greene (Iowa), 266 ; McQuigg v. MoQuigg, 13 Inch, 294; Bishop on Marriage and Divorce, §§ 697, 699, 706, and as to the English rule, § 694 et seq. The two provisions of our statutes, sec. 38, ch. 125, and' sec. 10, ch. 124, are both borrowed from the N. Y. code, and the courts of that state, both before and since the code, have exercised the most ample powers over judgments of divorce. Hoffmire v. Hoffmire, 3 Edw., 173; S. 0, 7 Paige, 60; Colvin v. Colvin, 2 Paige, 885; Dunn v. Dunn, 4 Paige, 425 ; F. B. v. F. G. B., 28 Barb., 299. Counsel also argued that there was nothing in sec. 10, ch. 124, which would ¡3revent the court from vacating a judg- . ment of divorce, even after the term, under sec. 38, chap. 125.