Curry v. Curry

1 Guam 51

• Court: District Court, D. Guam
• Decided: April 2, 1959
• Docket: Civil No. 16-A
• Status: Published

Opinion

PER CURIAM

OPINION

The appellee’s motion to vacate interlocutory decree of divorce, which was filed on November 29, 1957, in our opinion must be construed as a timely motion for relief from the interlocutory decree in question under the terms of Rule 60 of the Island Court of Guam. The fact that no action was taken on this motion until February 28, 1958, and that in the meantime the appellee had filed a confirmatory or further motion to vacate the interlocutory decree of divorce is, in our opinion, immaterial and the Court’s order vacating the interlocutory decree of divorce, dated February 28,1958, should be construed as based upon the motion filed November 29, 1957 which was clearly filed within the time limit permitted by Rule 60 referred to above.

Counsel for the appellant has strenuously argued that the motion to vacate the interlocutory decree of divorce did not comply with the requirements of Section 473 of the Code of Civil Procedure, and therefore should not have been granted, but we hold that Rule 60 of the Island Court of Guam, approved by the Judicial Council December 15, 1954, to be effective January 1, 1955, has superseded the limitations in Section 473 insofar as the rule is inconsistent therewith. The rule was one of those adopted under Section 123 of the Code of Civil Procedure, which provides, in part: “All laws of Guam in conflict with such rules shall he of no further force and effect after they take effect.”

Any defect there may have been in the original service of process in this case has been cured by the filing of an appearance for the appellee, the motion to vacate interlocutory decree of divorce, and the appellee’s answer filed February 18, 1958.

The Island Court’s order vacating interlocutory decree is accordingly affirmed and the case remanded to the Island Court for further proceedings.