Page:North Dakota Reports (vol. 3).pdf/383



Citation to Show Cause—Service on Attorney.

When a decree of court has been obtained, and an application to set the same aside is subsequently made in the same case, service of the citation to show cause why the decree should not be set aside is properly made upon the attorney of record who procured the decree.

Affidavit for Publication of Summons—Diligence.

An affidavit for publication of summons, which entirely fails to show that any diligence was used to find the defendant in this state, and fails to state positively the residence of such defendant, or that any diligence has been used to ascertain such residence, is fatally defective, and a publicatton of summons based upon such affidavit confers no jurisdiction of the person of defendant.

Motion to Vacate Decree—Appearance—Waiver of Service.

When a party who has not been properly served with process appears in a case, and asks to have a decree against him set aside for the reason that the court had no jurisdiction of his person, and for the further reason that such decree was procured by fraud and deceit, and was without evidence to support it, such appearance is general, and is a waiver of all defects in the service of process.

General Appearance Will Not Validate Void Decree.

But such general appearance will not validate a decree otherwise invalid by reason of fraud and deceit practiced in its procurement.

Vacation of Decree—for Fraud or Deceit.

Courts of general jurisdiction have the inherent power, independent of any statutory provisions,—and in divorce cases no less than in other cases,—to set aside and annul’any judgment or decree procured by the fraud and deceit of the successful pasty, practiced upon the complaining party to the action, and the court.

Vacation of Decree—Rehearing.

When a decree is thus annulled for fraud in its procurement, it is not proper for the court to go further, and dismiss the action with costs. The case should be retained, and defendant granted a reasonable time within which to plead to the complaint.

Appeal from District Court, Cass County; McConnell, J.

Action by Louis A. Yorke against Emma M. Yorke, for a divorce. Plaintiff had a decree, and from an order vacating the same, and dismissing the complaint, plaintiff appeals.