Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-23
Evans V. Evans.

Decided OClODeT lus 1911.
Charles Evans, respondent, V An
geline Evans, appellant. Appeal from
fhe circuit court for Clackamas
county. Hon. James U. Campbell,
Judge. Argued and submitted October
& 1911. Richard Sleight and &c. A.
Lamoreux on the brief) for appellant.
W. H. Fowler for respondent. Moore,
J. Reversed.
Moore, j. This is an appeal by the
defendant from an order of the cir
cult court for Clackamas county, re-
fusing to set aside a default decree
and for leave to answer a complaint.
The facts are that on October 10, 1906,
a suit was commenced in that court
by Charles Evans against Angeline
Evans to secure a dissolution of their
marriage. The complaint stated the
requisite facts to confer jurisdiction
of the cause and alleged cruel and
inhuman treatment on the part of the
defendant towards the plaintiff as the
ground for the relief sought Per-
sonal service of process could not be
made upon the defendant whereupou
the summons was undertaken to be
served by publication, the courts or
der therefor being based upon plain
tiff's affidavit which, so far as ma
terial, is as follows: THAT defendant
is not a resident of, nor is she within
the state of Oregon; that defendants
last known place of residence or
abode was the town of Mankato, State
of Minnesota. That plaintiff has made
due and diligent search to learn or
ascertain the present residence or
whereabouts of said defendant, and
has in this behalf inquired of and
from Miss Anna L. Giless, st. Johns,
Oregon, and Arthur H. Johnson, East
Portland, Oregon, persons who are
acquainted with or most likely to
know the present residence, abode or
whereabouts of defendant, and that
he is informed by said last mentioned
persons, and each of them, that they
know that the defendant is not now
a resident of nor is she within the
state of Oregon, and that they verify
believe that said defendant is now a
resident in the town of Mankato, state
of Minnesota, and that said last men
toned place, is the last known
place, residence, abode or wherea-
bouts of said defendant"
Certified copies of the complaint
and of the summons were mailed to
Mankato, Minnesota, addressed to the
defendant and the summons was duly
published for the required time in
news paper printed at Oregon City.
No appearance having been made or
answer filed by the defendant, her
default was entered, whereupon the
cause was referred and from the tes-
timony taken findings of fact and of
law were made and based thereon
decree Of divorce was rendered April
Is, 1907.
This motion was interposed April
IS, 1910, when an answer was ten
dered denying the allegations of the
complaint as to the cruel and inhu-
man treatment charged and praying
that the suit for a divorce might be
dismissed. In support of the applica-
tion to set aside the decree defendant
filed an affidavit in which she gives
the several places in which she and
the plaintiff lived together, saying:
There has not been a day since the
marriage that he could not have
learned by telegram and by letter the
postoffice address and place of domi-
cile of defendant and all about her
and what she was doing" She further
deposed that in the summer of 1904
the plaintiff left Columbus, Wiscon-
sin, where she was caring for her
sick mother; that after the death of
the latter the affiant went to FELTON,,
Minnesota, where she found him liv-
ing in a rented house with Miss Anna
L. Gillness (Gilness) whom he intro
duced to her as poor orphan he
wished to adopt, but whom he repre-
sented to others at that place as his
daughter. That about March 1. 1905,
the defendant complained to plaintiff
Of the presence of Miss Gillness in
their home, whereupon he beat and
Choked affiant and his i'll treatment
became so conspicuous that quite
number of the women of FELTON, or
dered such woman to leave town
within "a hours. That the command
plaintiff abandoned and deserted de-
fendant since which time he has con-
tributed nothing toward her support
That she learned he went to Fargo,
North Dakota, where he Joined Miss
Gillness with whom he departed to
the Pacific Slope. She states that
efforts she made to find him in Ore
gon without success. That on Janu-
ary 9, 1910, she learned that he Wis
tied Columbus, Wisconsin, to attend
his mothers funeral, and was then
informed that he was living with
Anna L. Gillness, claiming that she