Phelps v. Phelps
New York Court of Chancery
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.
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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…
1Opinion of the Court
The Chancellor
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.
2Cited by9 opinions
- People v. FlynnUtah Supreme Court · 1891
- White v. . UnderwoodSupreme Court of North Carolina · 1899
- In re TramnerNevada Supreme Court · 1912
- Davis v. DuffieThe Superior Court of New York City · 1861
- Gray v. GrayMissouri Court of Appeals · 1904
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