Raps v. Raps

THE COURT.

This is an appeal from an order vacating a final decree of divorce. Proceedings were brought in the superior court in June, 1939, by Elias Raps to set aside the interlocutory and the final decrees of divorce entered about twelve years before in favor of his wife.

Rose and Elias Raps were married in 1912. On March 1, 1926, Rose was granted an interlocutory decree of divorce on the ground of wilful neglect. The final decree was entered on motion of plaintiff’s attorney on March 4,1927. The record shows that the parties had become reconciled and were living together at the times of entry of both decrees. Rose died in 1938 and her sister, Fanny Abrahamson, was appointed executrix of her will. The will recited that Rose and her husband were divorced. Shortly before her death Elias was stricken with partial paralysis, hyper-pituitarism caused by the removal of a tumor on the brain, and secondary anemia. He was placed in a hospital and suffered the deprivation of normal mental and physical faculties for some time. He did not learn of his wife’s death or the recitation in her will that they were divorced until after partial recovery. Thereupon, and within three months, he moved to vacate the divorce decrees on the ground that they were procured by extrinsic fraud on the part of the plaintiff in concealing the fact of ■ reconciliation and were therefore void.

In the meantime Mr. More, who was the attorney of record for Rose Raps in the divorce proceeding, the judge who tried the case, and the then clerk of the court had passed away.

The defendant’s motion'was made without formal substitution of the executrix of Rose Raps, deceased, as a party to the divorce action, and without formal substitution of an attorney in the place of Mr. More. It does not appear that a notice of motion or any other process was served upon the executrix, Fanny Abrahamson, who was in Maryland when the proceeding on the motion was commenced. However, it does

[384]

appear that a notice of motion, addressed to Fanny Abraham-son, was served on Stella Donovan, her attorney in the matter of the probate of the will of Rose Raps.

The motion to vacate came on for hearing on June 27,1939, and the attorney for the executrix appeared in court and asked for a continuance. A continuance was granted until June 29, 1939, and the hearing was held on that day. The transcript of the record at the hearing is shown by the following :