McBlain v. McBlain

Paterson, J. Action for divorce. The complaint was filed July 10, 1884; summons issued the same day; affidavit for publication of summons was made July 15th; order for publication of summons was made July 16th, but not filed until October 27, 1884. The default of the defendant for failure to answer was entered October 17, 1884, on an affidavit of John M. Wheeler, made that day, alleging that he delivered to the defendant personally in the city of Philadelphia, on the seventeenth day of July, 1884, a copy of the complaint and summons. On October 27, 1884, one J. F. McLaughlin made affidavit that the affidavit for publication and order of publication were lost and could not be found, and that on the sixteenth day of July he had deposited a copy of the summons and a copy of the complaint in the post-office at San Francisco, inclosed in an envelope directed to .the [509]defendant at her place of residence, Philadelphia, Pennsylvania, with postage prepaid thereon. Thereupon, what purported to be copies of said affidavit and order for publication were filed “October 27, 1884, nunc pro tunc July 16, 1884.” The authority of the clerk for filing said copies nunc pro tunc does not appear, but probably an order was had therefor, because judgment in favor of plaintiff dissolving the bonds of matrimony was made and entered on the same day.

On the twentieth day of April, 1885, the defendant, Sarah McBlain, filed a motion in said cause to set aside the decree rendered against her, and for permission to answer the complaint, on the grounds that the defendant was not a resident of this state within six months preceding the commencement of the action, and that the defendant had never been served personally or by publication, and that the proceedings were fraudulent and irregular. The court, having heard the matter upon affidavits, denied the application of the defendant on the ground that no affidavit of merits had been filed.

The order of the court must be reversed. The affidavit made by the defendant contains sufficient denials of the material matters set forth by the plaintiff in his complaint, and shows a good defense on the merits if its contents are true. But there is no necessity for an affidavit of merits in an action for divorce; and the court should be very liberal in granting applications to set aside defaults in divorce actions, where it appears at all probable that there was no service, either personal or by publication. Not only can no divorce be granted upon the default of the defendant, or a finding of fact made by a referee, hut the law inhibits the granting of divorces upon the uncorroborated testimony or admission of the parties. The parties to the action are not the, only people interested in the result thereof. The public has an interest in the result of every suit for divorce;