McJunkin v. McJunkin

Smith, J .

Alexander McJunkin, the appellee, filed a bill to obtain a divorce, against Elizabeth McJunkin. Notice was given by publication, the said Elizabeth being a nonresident.

Elizabeth was defaulted, proof was made, and a divorce was decreed in October, 1845. At the next ensuing term of the Circuit Court, in February, 1846, the said Elizabeth filed an affidavit that she had no actual notice or personal knowledge of any kind, of the pendency of the bill for a divorce, and prayed for an opening of the decree. She also filed an answer to the bill.

Notice of the motion to open the decree was given to the complainant, who filed an affidavit, stating that since the decree he had married again. He also denied the allegations in the answer.

The Circuit Court refused to open the decree; and from this decision, Elizabeth appeals.

By section 45, c. 35, p. 602, of the R. S., it is provided that the practice and proceedings in suits to obtain divorce shall be the same as in other cases in chancery, with certain specified exceptions.

In the chapter relating to suits and proceedings in chancery, c. 46, ss. 98 and 99, there are provisions that parties against whom a decree has been rendered without other notice than by publication in a newspaper, may, at any time within five years, have such decree opened and be let in to a hearing, by giving notice to the original complainant, or his heirs, devisees, executors, or administrators, and upon filing a full answer to the original bill with an affidavit, &c.

The Circuit Court decided that these last mentioned statutory provisions were not intended to apply to divorce cases; and we are of the same opinion. The fact that *31 they require decrees to be opened as against the heirs, devisees, or personal representatives of the original complainant, tends to satisfy us that the legislature, in maleing this enactment, had in view other classes of cases. Among the exceptions to the provision that the practice in suits to obtain a divorce shall be the same as in other chancery cases, one is, that the defendant is not required to make a full answer, but may make a general denial without oath. This, also, would seem to indicate that such suits were not supposed to be within the meaning of the sections referred to in the 46th chapter. The rights of bona fide purchasers of property, sold under the decree sought to be opened, are protected by another section, but no provision is made that children born of a second marriage, before the opening of the decree, shall be legitimate; and upon the whole, taking all the provisions of both chapters, and the consequences which would follow a different decision, into consideration, we think the judgment of the Circuit Court should be affirmed.

R. Brackenridge, Jr., for the appellant. J. K. Edgerlon and C. Case, for the appellee. Per Curiam .

The judgment is affirmed with costs.