Brown v. Brown — 8 N.Y. Sup. Ct. 443

Majority

p. 443

CHARLOTTE E. BROWN, Appellant, v. HENRY BROWN, Respondent.

Headnote

Absolute Divorce—when court has no power to open decree of— Code, § 135, suh. 5.

The court has no power to open a decree, granting an absolute divorce, upon proof that defendant did not receive any copy summons or notice of publication, and upon affidavits showing a defense.

Section 135, subdivision 5, of the Code, deprives the court of this power.

Appeal from an order, vacating a judgment in favor of the plaintiff, and allowing the defendant to answer and defend.

The facts appear in the opinion.

QTia/rles W. Papión, for the appellant.

H. G. Place, for the respondent.

This is an action for a divorce. The summons was served hy publication. Shortly after the decree was entered, granting an absolute divorce in favor of plaintiff, the defendant, upon proof that he did not receive any copy summons by mail, or any notice of the publication thereof, and upon affidavits showing a defense, applied to the court for leave to answer, and the court made an order opening the judgment, and permitting defendant to defend ; from this order the plaintiff appeals.

By section 135, subdivision 5, of the Code, it is provided that “ the defendant against whom publication is ordered, or his representatives, on application and sufficient cause shown at any time before judgment, must be allowed to defend the action; and, except m an- action for di/oorce, may, in like manner, upon good cause shown, be allowed to defend after judgment, or at any time within one year after notice thereof, and within seven years after its rendition, on such terms as may be just.” This section deprives the court of the power to grant the order appealed from. In all actions, except for divorce, after judgment, the defendant may be allowed to defend, within one year after notice of the judgment, and within seven years after its rendition.

p. 444

The legislature, doubtless, intended to provide.for new relations under the judgment — another marriage and birth of children. The character of the person who should marry such divorced plaintiff, and the legitimacy of his or her children, born of such a marriage, are protected by this statute. This exception as to divorce, was not in the Code' of 1848.^[1] It was first inserted in 1849, and has never been altered since^[2]

The order should be reversed, and the motion denied, without costs.

Present—Barnard, P. J., Tafpen and Talcott, JJ.

Order reversed, and motion denied, without costs.

* Section 114 Code, 1848.

† † Code of 1849, section 135, subdivision 6.