Daily capital journal. (Salem, Oregon) 1903-1919, 1911-08-03
OREGON SUPREME COURT DECISIONS
Full Text by Courtesy Of F. A. Iuner Reporter Of the
Supreme Court

Of the suit, can not be considered as
one of the grounds for the divorce.
Therefore, even If there was a repe-
tition of the acts condoned, which is
not disclosed by the record, the
cause of suit was not revived, entit-
ling plaintiff to a decree therein, but
the new acts Of cruelty must be the
basis of a new suit Hence, 1t ap-
pears from the record that the court
had no authority to enter the decree
or proceed with the suit after 1t had
appeared therein that the ground for
divorce had been condOned and the
parties had resumed their marital re-
lations; and the decree is void.
By Sec. $40, L. o. L., it is de-
fense to the suit if "the act has been
expressly forgiven, or impliedly so,
by the voluntary cohabitation of the
parties after knowledge thereof"
and by Sec. 1920, it is made the duty
of the district attorney to defend di-
vorce suits, so far as Is necessary to
pTevent fraud or collusion, showing
that the decree should only be
granted in cases provided for by the
statute: Earle V. Earle, 43 Or. 294.
The decree being unauthorized, it
was the duty of the court to set it
aside when it's attention was called
to 1t by the motion Of August II,
1909.
In Hoover V. Hoover, 80 Or at p.
46O, it is said: Ordinarily, there is
no appeal from a judgment or decree
given for want of an answer; relief
therefrom must be sought by an ap-
plication to the trial court, and from
the order touching the application an
appeal will lie." A similar point
was raised in Huffman V. Huffman,
AZ Or at p 61S, in relation to which
Mr.. Justice Moore says: "The re-
naming question is whether or not
the court erred in refusing to vacate
part of the decree so assailed 4"
! Superior courts possess ample power
at all times to vacate void judg-
ments, DEGREES and orders, and it is
incumbent upon them to purge their
records of the entries of such nulli-
ties when their attention is called
I lllNltlOs anu lllt Olutl utuJ Ing q
motion to vacate the decree was re-
versed To the same effect see, Ladd
V. Mason. 10 Or. 308; White v. Ladd
Al Or $3.50; Multnomah county v
Portland Cracker company 40 Or
PSI.
However, neither plaintiff nor de-
fendant were entitled to have the
suit dismissed. The parties cannot
settle a suit and have it dismissed to
the prejudice of third persons. The
statute entities the wife to an oppor-
tunity to present her case in a di-
vorce suit, and if she is without
means the court will require the hus-
band to furnish it. if he is able The
court made an order for the advance
ment of alimony and for the support
of the wife by the husband, pending
the suit, So far as the order was for
the support of the wife or any costs
she may have advanced they are in.
cluded in the settlement, and the
wife has no remedy therefor. MOI
has the attorney any interest there
in But If part of the order was in
NtiNtu 40 oull IlbhVgS NSlutI AuUul
vision l of Sec. 512, L. o. L., and tht
plaintiff has not paid either the cour
costs or attorneys fee, the court car
render such judgment or order in tn,
case as may be necessary to enforce
so much of the order for suit none,
as may be reasonable and proper
considering the circumstances of tn
case. See FalcOnic V. Larsen, 81 Or
14S.
Therefore the decree of dlvorc
will be reversed and the cause re
manded to the court below for sucl
+ other proceedings as may be prope
not inconsistent with this opinion
, The costs Of this appeal will be al
lowed to the defendant out of an
sum finally adiudged against him il
this proceeding.