Wakefield v. Wakefield

JAMES, J.

An appeal is taken by plaintiff from an interlocutory judgment of divorce entered in favor of defendant. Plaintiff instituted this action for the purpose of obtaining the custody of one Franklin Webster Wakefield, Jr., and also prayed for an order giving him the right to visit Joseph Sefton Wakefield. Plaintiff and defendant were husband and wife; the two persons above named were minor children of plaintiff and defendant, and at the time this action was instituted were in the custody of the wife, who was then living separate and apart from her husband. An answer was filed to plaintiff’s complaint denying the allegations thereof and, by way of cross-complaint for divorce, the defendant charged the plaintiff with having committed adultery. Plaintiff answered the cross-complaint of defendant, and on June 19, 1909, an amended cross-complaint was filed wherein the defendant set up a different cause of action for divorce, charging the plaintiff with having failed to provide for her the common necessaries of life for more than one year prior to the filing of said cross-complaint. This amended cross-complaint was served upon the attorney for plaintiff on the tenth day of June, 1909. No answer was made thereto, and on July 22, 1909, after the time allowed by law for the defendant to appear and make answer to the cross-complaint had expired, the cause came on for hearing before the court.

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The minute entry of the court made on July 22,1909, is shown, and it appears therefrom that both parties were represented in court and that the defendant asked and received leave to withdraw her cross-complaint as first filed, and that evidence was heard in support of the allegations contained in the amended cross-complaint, plaintiff offering no evidence at all in support of his complaint. The minute entry further shows that after the hearing of the testimony an interlocutory decree of divorce was ordered entered in favor of the defendant in accordance with the prayer of her amended cross-complaint.

On this appeal plaintiff, among other points urged, contends that, as the record does not show that a formal entry of the default of the plaintiff for not answering the amended cross-complaint was made, the court was without right to proceed and render judgment. The record does show that issues had been made up on the complaint and the answer of the defendant and that the cause came on regularly for hearing; that both parties were present in court, the plaintiff by his attorney and the defendant with her counsel. The time within which the defendant was allowed to make answer to the amended cross-complaint had expired about thirty days prior to the time of trial. It does not appear that the plaintiff at any time, at or. prior to the date of hearing, offered or asked leave to file an answer to the amended cross-complaint. He was present by counsel in court when the matter came on for hearing and did not then, so far as the record shows, offer any evidence, either in support of the allegations of his complaint or in denial of the allegations of the amended cross-complaint. "Under this state of facts, plaintiff is not in a position to question the regularity of the judgment on the ground that a formal entry of his default in failing to answer the amended cross-complaint should have been made before the interlocutory judgment was ordered. It must be assumed from the record as it is here presented that notice of trial was regularly given, or that the cause was heard on the date mentioned by the consent of the parties. It is very evident that the plaintiff had notice of the hearing, for the record shows that his counsel was in court to represent him. It has been held, even in cases where no notice of hearing is given, that a formal entry of default need not be first made in order that the court shall have jurisdiction to enter judg