R- vs. R-

R-vs. 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. Austin, Persies & Johnson, for appellant, 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. Fred. C. Winlcler, for respondent, 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. [MAJORITY — Cole, J.] Cole, J. In the case of Wetherbee v. Wetherbee, decided at tMs term, it -was Reid that a judgment of divorce might be set aside on motion at a subsequent term, on the application of the defendant. It appeared, however, in that case, that the service of process was void, and that consequently the court never acquired jurisdiction of the person of the defendant. Whether, if jurisdiction had been acquired of the person of the defendant by proper service of process, it would have been competent for the court at a subsequent term to set aside a judgment of divorce for cause shown, either by virtue of its inherent powers over its judgments, or under section 38, chap. 125, R. S. (when the application is made under that provision of law), was a point not decided. It is contended that it is the policy of our laws that judgments of divorce from the bonds of matrimony should not be set aside, but should stand from the moment they are pronounced; and this argument is based upon certain supposed consequences which would follow in case' of a second marriage, and issue born, if the practice of vacating such judgments should obtain. And it is likewise insisted that this view derives great force from the language used in the latter clause of section 10, chap. 124, which provides that when the summons is not personally served on the defendant, nor received by such defendant through the postoffice in the cases provided for in that section, “ he or his representative shall, on application and sufficient cause shown, at any time before judgment, be allowed to defend the action ; and except in actions for divorce, the defendant or his representative may, in like manner, upon good cause shown, be allowed to defend after judgment, at any time within one year after notice thereof, and within three years after its rendition, on such terms as shall be just, except in actions for divorce.'1'1 Now what effect should be given to this language, or whether it restricts or prohibits courts in divorce cases from exercising the power granted in section 38, chap. 125, is a point not necessary now to be settled. For we are well satisfied that by it the legislature did not intend even in divorce suits to interfere witb or take away tbat power and control wbicb courts bave heretofore exercised over them judgments rendered at tbe same term. We suppose it to be a well settled principle tbat courts of record bave full power to amend, correct or vacate judgments during tbe term at wbicb they were rendered, upon proper application made for tbat purpose; and tbat until tbe close of tbe term sucb judgments are within tbe control of tbe court. In tbis case tlie application to set aside tbe judgment of divorce from tbe bonds of matrimony was made at the same term tbe judgment was rendered. Tbe application therefore came billy within tbe principles above referred to. And tbe matter stated in tbe affidavits in support of tbe motion to vacate tbe judgment presented a fit case for tbe exercise of tbis power on tbe part of tbe court. By the Court — -Tbe order of tbe circuit court vacating tbe judgment is affirmed.