Darwin v. Darwin , 27 Idaho 303 ( 1915 )

SULLIVAN, C. J.

— This is an appeal from an order denying defendant’s motion to open, vacate and set aside a default and decree entered against her in an action for divorce, and permit her to appear and answer to the merits. The ground of said action was cruel and inhuman treatment. The denial of said motion by the court is the only error assigned.

The record shows that the complaint was filed August 3, 1914, at a time when the defendant was in the east on a visit, having left Lewiston, Idaho, the latter part of May, 1914. A summons was issued shortly after the complaint was filed and placed in the hands of the sheriff for service and was returned unserved on August 14, 1914. On August 16th this plaintiff filed an affidavit and obtained an order for service for an alias summons out of the state, to wit, in Boston, Mass. Said alias summons was issued and was thereafter returned unserved. On September 15, 1914, the plaintiff filed an affidavit for the publication of summons, making application thereunder to have the former order for service of alias summons set aside, and on said date obtained an order for the publication of the said summons in the “Lewiston Morning Tribune.” The summons was published.in said newspaper for the time prescribed by law, but proof of such publication and the mailing of the copy of the summons and complaint was not filed, for the reason stated in the affidavit of the attorney for the plaintiff, namely, that prior to the completion of such publication a copy of the alias summons and complaint was personally served on the defendant at Lewiston, Idaho, by the sheriff of Nez Perce county. On October 10, 1914, the defendant arrived in Lewiston accompanied by a Mrs. Baker, a mutual friend of the parties to said action. Appellant’s arrival was without notification to her husband. The appellant and the mutual friend remained in Lewiston until the morning of the 14th of October, spending the day time at the Darwin home and the nights at the Bollinger Hotel, except the night of the 13th, which they were permitted to spend at the husband’s ranch. It appears that during those three days the conversation was almost continuously on the subject of divorce proceedings, appellant urging that the proceedings be dropped or postponed and respondent insisting that they be carried on to final determination in court.

On the afternoon of the 13th of October, the appellant was personally served with the summons and a copy of the complaint, and after receiving them they were placed on her husband’s desk and thereafter he sent them to her by mail. The summons was also published in the “Lewiston Morning Tribune” for the time prescribed by law, and a copy of the summons and complaint was mailed to the appellant, directed to her brother’s residence, No. 12 Fairland St., Roxbury, Mass. The record thus shows that she was served with summons personally and also by publication. It appears from the record that the service of summons was completed on November 2, 1914, and that default was entered on the 7th of November. The appellant failed to make any appearance whatever.

Thereafter on the 16th of November, the court having heard the evidence, made and entered finding of facts, conclusions of law, and entered a decree in favor of the respondent, awarding him the divorce prayed for, and also approving, by way of property settlement, a certain trust agreement wherein and whereby the plaintiff made provision for the defendant, to be operative in case ef his death. The decree also included provision for the defendant’s support and maintenance during the plaintiff’s life.

On December 9, 1914, the appellant made a motion and filed certain affidavits whereby she sought to have vacated said default and decree, alleging in her affidavit that on the evening of October 13, 1914, the respondent induced her to return to Boston by promising if she would do so he would drop the proceedings for the divorce and would send for her the following spring. This statement made in the affidavit of the appellant was emphatically denied by the respondent and he states in his affidavit that he never heard of any such promise until he read it in the' affidavit. Lengthy affidavits were filed by the appellant and the respondent on said motion. In fact, the affidavits filed cover many pages of the record, and the' record also contains many letters written by the appellant to the respondent and letters written by the respondent to the appellant. The record contains over 100 pages of typewritten matter.

After hearing arguments on said motion, based on the affidavits and record, the trial court entered an order denying the appellant’s motion and application, and the only question presented is whether the court erred in denying said motion.

From the whole record we are satisfied that the trial court did not err in holding that the respondent did not agree with the appellant that if she would return east he would drop proceedings for divorce and send for her the following spring, and that appellant was properly served with summons and knew of the pendency of said action and failed to appear and answer, and that no deception was practiced by respondent in said matter.

It will serve no good purpose to review the lengthy affidavits and letters presented in the record which were considered on the trial. We therefore shall not attempt to review them in this opinion, since it is clear to us that the trial court did not abuse its discretion in denying said motion.

Each party to pay his own costs on appeal.

Morgan, J., concurs.