Medina v. Medina , 22 Colo. 146 ( 1896 )

Mr. Justice Goddard

delivered the opinion of the court.

The controlling question presented by the assignments is whether the county court had jurisdiction to entertain the motion to vacate the decree of divorce after the lapse of the term at which it was rendered. Upon this proposition we entertain no doubt. Even assuming a valid service of the summons was had by publication, the court had jurisdiction to entertain the motion under section 75 of the code of 1877, which, inter alia, provides :

“ When, from any cause, the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representatives, at any time within six months after the rendition of any judgment in such action, to answer to the merits of the original action.”

Plaintiff in error contends that the foregoing provision does not apply to decrees of divorce, and cites in support of this claim McJunkin v. McJunkin, 3 Ind. 30; Lewis v. Lewis, 15 Kan. 181. In MeJunlcin v. MeJunlcin the court had under consideration a special act of the legislature, which provided that the practice and proceedings in divorce cases should be the same as in other chancery cases; and whether, by virtue of such provision, decrees of divorce were included in certain sections of the chapter relating to suits in chancery, which provide for the opening of decrees rendered without other notice than by publication in a newspaper; and held that decrees of divorce did not come within the latter sections. These sections are not at all similar to the provision of our code above quoted. The decision in Lewis v. Lewis, supra, does not sustain the plaintiff’s contention. The court expressly refuses to decide whether, had there been only a publication in the newspaper, the case would not fall within section 77 of their code, but expressly held that the application was properly denied because, in addition to the publication in the newspaper, a copy of the petition and notice was mailed to the defendant, as required by section 641, and the court say:

“ The conclusion then, to which we have come, though, as we freely admit, with grave doubts, is, that the mailing of the copy of the petition and notice, as required by said § 641, is a part of the service, and that therefore, in a case where such mailing has been duly made in addition to the publication of notice in the paper, § 77 does not apply, and that a decree legally entered under those circumstances cannot be set aside upon the mere showing of actual ignorance of the pendency of the suit.”

In the case of Hemphill v. Hemphill, 88 Kan. 220, it was held that a judgment in a divorce action came within sec. 77 of the code, and the case of Lewis. v. Lewis, supra, was cited and distinguished. That jurisdiction is conferred by the foregoing provision to entertain an application to vacate a decree of divorce when rendered upon service by publication in a newspaper only, as well as other judgments, is sustained by Lawrence v. Lawrence, 73 Ill. 577; Edson v. Edson, 108 Mass. 590; Dunn v. Dunn, 4 Paige, 425; Weatherbee v. Weatherbee, 20 Wis. 499; Smith v. Smith, 20 Mo. 166.

And the fact that the party to whom the decree was granted has married in the meantime, or that a child has been born as the fruit of such second marriage, cannot divest the court of its power to set aside the decree of divorce. Crouch v. Crouch, 30 Wis. 667; Comstock v. Comstock, 23 Kan. 513; Allen v. McClellan, 12 Pa. St. 328; Holmes v. Holmes, 63 Me. 420.

“ Persons, * * * acting under such a decree, are not entitled to the protection of the court as acquiring rights in good faith in reliance upon a decree of court.” Lawrence v. Lawrence, supra.

But, aside from the authority conferred by the foregoing provision, the county court of Douglas county had jurisdiction to vacate and set aside the decree upon the further ground of its invalidity for want of service upon the defendant in the original suit. The court never acquired jurisdiction of the defendant, Mary G. Medina, and for this reason the order of publication and all subsequent proceedings, including the decree, were of no validity, and should have been set aside. The court, therefore, having jurisdiction to entertain the motion and enter the orders complained of, its orders being unaffected by fraud, even if erroneous, cannot be questioned or disturbed in this proceeding. From this conclusion it follows that the oral evidence sought to be in* troduced would in no way affect or change the result reached by the court below, even if admissible. Therefore we deem it unnecessary to consider the question.

From an examination of the record, we áre satisfied that the judgment of the court below is correct, and it must be affirmed.

Affirmed.