Brown v. . Brown
New York Court of Appeals
Appeal from order of the General Term of the Supreme Court in the second judicial department, reversing a Special Term order vacating judgment and allowing defendant to come in and defend. (Reported below, 3 N. Y. S. C. [T. & C.], 4UT; 1 Hun, 443.) This was an action for divorce. The summons ivas served by publication, there was no apj)earance on the part of defendant, and a judgment for an absolute divorce was obtained and perfected.
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Appeal from order of the General Term of the Supreme Court in the second judicial department, reversing a Special Term order vacating judgment and allowing defendant to come in and defend. (Reported below, 3 N. Y. S. C. [T. & C.], 4UT; 1 Hun, 443.) This was an action for divorce. The summons ivas served by publication, there was no apj)earance on the part of defendant, and a judgment for an absolute divorce was obtained and perfected. Shortly thereafter defendant, upon proof that he did not receive any copy summons or any notice of publication, and upon affidavits showing a defence, applied…
1Opinion of the CourtRapallo, J.
We cannot concur in the conclusion at which the General Term arrived in this case, that section 135 of the Code deprives the courts of all power to open a default in an action for a divorce when the summons has been served by publication. The object of the provision in section 135, in relation to opening judgments, undoubtedly was to give to parties proceeded against by publication ample opportunity to appear and defend, and to enlarge rather than to restrict the power of the courts to relieve against judgments obtained in that manner. 'Under that provision the period of seven years must…
2Cited by6 opinions
- In Matter of City of BuffaloNew York Court of Appeals · 1879
- Graham v. GrahamWashington Supreme Court · 1909
- Tilton v. BeecherNew York Court of Appeals · 1874
- Cunningham v. JudsonNew York Supreme Court · 1883
- Forstman v. SchultingNew York Supreme Court · 1886
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