Foley v. Foley

Appeal—Nonappbalablb Orders—Bill op Exceptions—Review upon Appeal prom Judgment.—Orders before judgment denying a motion to Set aside a default, and striking out a demurrer and ordering judgment to be entered for plaintiff, are not appealable, and appeals therefrom must be dismissed; but such orders may be reviewed upon appeal from the judgment upon a bill of exceptions showing exceptions thereto, and the fact that such bill was taken and settled with reference to the appeals from the nonappealable orders does not pro-elude its use ior the purpose of reviewing such orders upon appeal from the judgment.

In.—Judgment without Trial—Order Denting New Trial not Reviewable.—A motion fora new trial is not a proper proceeding to review the action of the court in rendering judgment in a case where there has been no trial upon issues of fact; and in such case there is no office to be subserved by a new trial, and there is nothing to be reviewed upon appeal from an order denying a new trial.

Id.—Hearing in Divorce Case, without Issues, not a Trial—Policy of Law—Construction of Code—Remedy upon Default.—The provisions of section 130 of the Civil Code, to the effect that no divorce can be granted upon the mere default of the defendant, and that the court shall require proof of the facts alleged before granting relief, merely declare the policy of the law in divorce cases, but are not to be construed as raising “issues of fact,” in case of default, nor as constituting the taking of proof, where the defendant has not answered, a “trial,” as those terms are used in the provisions relating to new trials; and the re-examination of an issue of fact, provided for in section 65G of the Code of Civil Procedure, is to be had only where there has been a trial of an issue arising where a material ave.rment made on the one side is controverted on the other, as provided in sections 588 and 590 of the same code; and the only remedy where a defendant has made a default, and suffered judgment upon an ex parte showing, is by motion under section 473 of the Code of Civil Procedure, and not by motion for a new trial; and attempted proceedings for a new trial in such case are nugatory, and cannot be reviewed upon appeal from an order denying a new trial.

Id.—Refusal to Vacate Default—Review of Discretion — Conflicting Evidence—Service of Summons.—Where the only ground of a motion to vacate a default was that the moving defendant had not been served with summons in the action, and the evidence upon that question was conflicting, the discretion of the court in refusing to vacate the default will not be disturbed upon appeal, there being nothing to indicate an abuse of discretion in denying the relief.

Divorce —Alimony — Contempt of Defendant—Constructive Service of Order to Show Cause—Waiver of Objection—Answer upon Merits— Personal Presence Unnecessary.—Where a defendant in a divorce suit was charged with contempt of court in refusing to obey its order respecting alimony, and the affidavits upon which the order to show cause was based disclosed that he was concealing himself to avoid . a compliance with the orders of the court and the service of its process, the court has power to direct that the order be served upon his attorneys of record, and such service is valid; and where his counsel appeared for him in answer to the order, and submitted evidence upon the merits, without objection to the want of personal service, this of itself was sufficient to give the court jurisdiction over him, and it was not necessary that he should be personally present, nor could he have been required to be so.