Aldrich v. Aldrich

LANGDON, J.

This is an appeal from an order of the superior court of the county of Santa Barbara refusing to grant a motion by defendant to set aside a decree of divorce granted by said court to plaintiff. The interlocutory decree was entered in April, 192-3, and the final decree was granted in April, 1924. No personal service was made upon the defendant, the summons having been served by publication. The motion to set aside the judgment was made on the ground that a fraud had been committed on the court by plaintiff in causing to be filed an affidavit to secure service on defendant by publication, which stated that defendant’s last known place of residence was Vermont, when plaintiff well knew that defendant was a resident of Champlain, New York, and on the further ground that defendant re

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ceived no notice of this action and was thereby prevented from protecting her interests by defending the same.

Defendant, in her brief, advances additional reasons for granting said motion, i. e., that service by publication founded on this affidavit was wholly void and of no effect, and that the court obtained no jurisdiction over defendant, and that plaintiff never secured a

bona fide

residence in this state on which to ground this action. These matters were not raised by the motion made in the trial court and we shall not consider them upon appeal. Upon the questions raised by the motion of defendant, she filed an affidavit stating that the parties had married in Vermont and had lived together as husband and wife from 1896 to

1919,

and that since that time they have been living separate and apart; that during said marriage the parties lived in New Hampshire and saved and invested the sum of twenty thousand dollars out of plaintiff’s earnings as a locomotive engineer, and that this amount was invested in the name of plaintiff. The affidavit continues as follows: “That without cause, on or about the said 3rd day of June, 1919, plaintiff herein ordered defendant herein to return to her brother in Champlain, New York. She protested and wanted to stay with him in Nashua, New Hampshire, but he insisted and put her on the train after buying her a ticket to Champlain, where her parents lived. Shortly thereafter he sent her clothes, and though she begged to return he refused; that after said defendant was compelled to leave plaintiff, as aforesaid, he, the said plaintiff, transmitted to her the' sum of $50 nearly every month to live on, he, the said plaintiff, depositing the said amount for defendant in the Second National Bank of Nashua, New Hampshire; that the plaintiff well knew that defendant was living in Champlain, New York, as he had considerable correspondence with her through the medium of the said bank, and Champlain, New York, was the town to which he had forced her to go as aforesaid. That plaintiff kept up said payments of $50 a month until the month of January, 1924, when he ceased making the payments.” Defendant then set forth that through the investigations of her attorneys she learned, in June, 1924, for the first time that plaintiff had secured a divorce and that he refused to pay further for her support. That thereafter a search was made by defendant’s