Everson v. Everson

164 N.W. 717, 101 Neb. 705, 1917 Neb. LEXIS 167

• Court: Nebraska Supreme Court
• Decided: October 13, 1917
• Docket: No. 19230
• Status: Published

Opinions

Cornish, J.

On August 5, 1914, plaintiff (appellant) obtained a decree of divorce. At the second term of the court thereafter, but within six months, the trial'judge, on motion of the defendant stating that the judgment had been obtained by mistake and inadvertence on her part and by fraud and deceit upon the part of plaintiff, vacated the judgment and gave defendant leave to answer. Had the court jurisdiction to make the order, and is it a final order reviewable as such in this court? The question involves the construction of section 1606, Rev. St. 19 IB (enacted in 1909), which reads as follows:

“A decree of divorce shall not become final or operative until six months after trial and decision except for the purpose of review by proceedings in error or by appeal and for such, purposes only, the decree shall be treated as a final order as soon as rendered: Provided, if proceedings in error or by appeal shall have been instituted within said six months, such decree shall not become final until such proceedings are finally determined. If no such proceedings have been instituted, the district court may, at any time within said six months, vacate or modify its decree, but if such decree shall not have been vacated or modified, unless 'proceedings are then pending with that end in view, the original decree shall at the expiration of six months become final without any further action of the court.”

The legislative intent was to prevent certain practices which it was thought were becoming scandalous to the state. Divorced persons would go into a neighboring state and marry again within the six months’ time allowed for appeal. The divorce decree being final, the state had no adequate preventive ready, and serious results to individuals sometimes followed. It was thought that the law would tend to- prevent collusive and illegal divorces and illegal marriages. It sought to make more likely the re-establishment of the home and less likely the taking advantage of the.state or the injured party who may have been misled or overreached. A penal provision, making such remarriage punishable as bigamy, was repealed at the time.

The trial courts, we believe, have generally construed the law to mean that during .the six months’ period the action is still pending before the court; that the trial court has power over it similar to that which trial courts have always exercised over their judgments during the term; that it is not a final order in any sense except for the purposes of appeal, but more in the nature of an interlocutory order which the court can, at any time, for good reason, vacate or modify. We are of the opinion that this construction is consistent with the language of the statute, and that the enactment is within the legislative power fixed by the Constitution. It follows that the court’s order upon the motion was one which the court had jurisdiction to make, and was not a final order from which appeal can be taken. ■

At the hearing on the motion it was contended by plaintiff that the motion should be overruled, among other reasons because the defendant, having notice of the trial, made no appearance, and because afterwards she recognized the decree, procured its modification, and in other ways acquiesced in the decree. To what extent such acts upon her part would operate as an estoppel against her to prevent a vacation of the decree is not decided. No doubt the general rule is that parties to a lawsuit are not permitted to take inconsistent positions or positions which merely tend- to harass and annoy or mislead their adversary.' We do not at this time decide whether the court’s order was erroneous.

For the reasons above given, the appeal is dismissed and the cause remanded for further proceedings according to law.

Dismissed.