Phelps v. Phelps — 7 Paige Ch. 150

Majority

p. 150

Phelps vs. Phelps.

Headnote

The personal service of a subpcena upon a defendant who is confined in the state prison for a term of years is regular; and the court will not set aside or open a decree by default obtained upon such service, unless it appears that the defendant by reason of his situation was deprived of a legal and meritorious defence.

March 20.

This was an appeal from a decision of a vice chancellor refusing to vacate a decree obtained against the defendant by default. It appeared that the defendant was sentenced to imprisonment in the state prison at Auburn, for felony, for a term of years; that while he was so imprisoned his wife filed her bill against him for adultery, and upon a personal service of the subpcena obtained a decree by default for a divorce. After his release from prison, he applied to set aside the default and open the decree, alleging among other things that his wife was willing to live with him and had been induced to apply for a divorce by the persuasion

p. 151

of her friends. The complainant contradicted this part of the affidavit upon which the application was founded.

M. T. Reynolds, for the appellant.

J. V. L. Pruyn, for the respondent.

decided that the service of the subpoena was regular; and that as it was not pretended by the defendant that he had a legal and meritorious defence to the suit of which he had been deprived in consequence of his situation, the vice chancellor was right in refusing to open the default and to vacate the decree.