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

refreshing my memory as to the con-
tents OF the affidayits heretofore men,
toned; that at the time l made said
atildayit | had in mind either a COM
munication in person or by letter;
that l am now informed that the al
legged communication and injury as to
the address of the residence and abode
OF the defendant was by telephone; I;
that | had at said time been informed
that the defendant had gone to q nor
NAL school to take a course therein,
but that my memory does not carry
me at this time to state whether or
not was informed as to what normal
school the defendant attended; that as
the conversation over the telephone
took place long time ago, and as
it is possible that the said conversa-
tion and inquiry did take place, but
that if 1t did, my recollection now is
the same as it was at the time I made
the first mentioned affidavit, to wit,
that l do not now remember the con-
versation in question, although l do
remember that at that time had been
informed that the defendant was in
some normal school,"
The foregoing is deemed fair sy-
nopsis of the material statements con-
tanned in the several affidavits offered
by the respective parties, and from
the showing thus made the question
to be considered is whether or not
the plaintiffs sworn declaration as to
the dafandanf,c racfdapoa axidapoas
such degree of fraud practiced by
him in order to make It appear that
the court had acquired jurisdiction
over her person. as would render a
refusal to set aside the decree and to
permit an answer to be filed an abuse
of discretion. The statute declares
that court in its discretion may "at
any time within one year after notice
thereof, relieve a party from a judg-
ment, order or other proceeding taken
against him through his mistake. in
advertance, surprise, or excusable
neglect" L. o. L. section 103. The
decree Of divorce was given April Is,
1907, and this motion was not inter-
posed until April IS, 1910. 1t will be
remembered that the defendants af-
fidavit states that prior to January ],
1910, she had no notice, knowledge or
information that a decree of divorce
had been rendered, and had never re-
ceived copy of the summons or COM
plant in any suit instituted for that
purpose. If by the use of the word
notice" in the section of the statute
referred to, the legislature intended to
give to the term its technical sense,
the enactment, without employing
many more words, could have pro-
vided that Eat any time within one
year after a judgment was entered"
the court might set 1t aside for the
reasons stated Since the language
suggested has not been employed we
believe the word notice" should be
construed to mean knowledge" and
such being the case the application
herein was made within the time lin
tied. Fildew " Miner, 109 Pac 1892.
AS many of the defendants relatives
in Wisconsin lived near the PLAINTIFF s
kinsmen, he could, have ascertained
her place of residence and mailed her
copy of the complaint and summons.
1t will be kept in mind that in the
affidavit for the service of process by
publication the plaintiff states that
he obtained his information respect
ing the defendants residence. in part
from the woman with whom Il ap-
pears he came to the Pacific Slope
whom he subsequently married, and
who may have been the cause of the
/ iYNb human n11aOaI In he
complaint as the basis for his suit
for divorce. Arthur H. Johnson's first
affidavit, offered in support of the
motion herein, contradicts every state
ment contained in the plaintiffs sworn
| declaration as to a part of the source
of his information regarding the de-
| fendant's residence. Johnson's second
affidavit, made at plaintiffs request
is very guarded but considering them
both in their proper relation to each
other we think the latter affidavit
does not sufficiently overcome the
positive assertions to be found in the
| former.
Looking at the entire case as made
by the affidavits we feel satisfied that
though there was studied effort on
plaintiffs part to comply with the
several reuirements of the letter OF
the statute so as to make the record
in the divorce suit appear valid, the
spirit of the law was wilfully violated
by him and no notice was given to
the defendant of the attempt to secure
a dissolution of the marriage.
The deduction thus reached places
the woman, whom the plaintiff now
claims to be his wife, in a serious So
cial condition, but believing she is not
faultless the consequences must fall
upon her. If, however, she is an in
nocent victom, the effect of the deter
mination cannot be mitigated for in
nearly every punishment that follows
violation of the law some guiltless
person who is a relative of the ac-
cused party necessarily suffers hui
initiation for the sentence which is
| imposed.
If by cross complaint the defendant
sought divorce and alimony her ap-
plication to set aside the decree herein
might afford some ground for denying
the motion interposed for that pur.
pose, but the prayer of her answer is
10 cote bn digunfcuoH