[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 476 Suit for divorce by Jack Cook against Maria Jane Cook, wherein a decree of divorce was rendered. After plaintiff's death, defendant filed a motion for an order quashing the service of summons, setting aside the order of default and decree entered, and allowing defendant to appear and defend, and the State of Oregon was permitted to file its complaint of intervention on behalf of the State Land Board. From an order vacating and setting aside the decree of divorce and granting defendant permission to file an answer, the State of Oregon appeals, and defendant moves to dismiss the appeal.
MOTION DENIED. REVERSED. On the 21st day of December, 1923, the above named plaintiff filed his complaint herein for divorce charging desertion on the part of his wife the above named defendant.
Summons was served by publication.
On the 15th day of February, 1924, a decree of divorce was rendered. On July 16, 1939, plaintiff, Jack Cook, died.
On July 11, 1940, the above named defendant filed a motion for an order quashing the service of summons, setting aside the order of default and decree entered *Page 477 on the 15th day of February, 1924, and allowing defendant to appear and defend in this suit.
On the 24th day of July, 1940, the State of Oregon filed a petition to be permitted to intervene herein and file its complaint of intervention.
An order was thereafter made permitting the State of Oregon to file its complaint of intervention, which, in effect, sought to uphold said decree of divorce for the reason that plaintiff herein died intestate and without heirs, which, unless said decree of divorce should be set aside, rendered his estate, alleged in the intervener's complaint, to be of the value of $10,000, subject to escheat to the State Land Board.
After hearing the testimony, the trial court entered an order vacating and setting aside said decree of divorce and granting defendant permission to file an answer herein.
From this last named order, the State of Oregon has appealed.
Defendant moves to dismiss said appeal on the ground that an order vacating a decree of divorce and permitting defendant to answer is not an appealable order.
The authorities generally hold that where the consequences of the divorce are such as affect the property rights of the parties to the suit the death of one party or both parties does not affect the right of the unsuccessful party, or his or her representative to institute vacation proceedings.
The doctrine is well settled that an order merely setting aside its former judgment and permitting the defendant to answer may be reviewed upon appeal from the final decree and not otherwise. Carmichael v. *Page 478 Carmichael, 101 Or. 172, 181, 199 P. 385, and authorities there cited.
This rule is not applicable to the instant case for the reason that defendant's sole and only purpose in securing the order vacating the decree of divorce herein was to secure for her the property owned by plaintiff at his death.
The State of Oregon, by its complaint in intervention, seeks to uphold the validity of the decree of divorce, thereby rendering such property subject to escheat to the State Land Board.
The order made by the trial court finally determined the issue, and the only issue presented herein, namely, whether, on the one hand, defendant is the owner of the property owned by plaintiff at the time of his death, or, on the other hand, the decree of divorce divested defendant of her right to claim such property, and, if plaintiff died without heirs, the State of Oregon may be entitled to it as escheated property.
There are three methods by which such an issue has been presented to the courts. One is the method followed herein by motion of the unsuccessful party to vacate the decree of divorce; another is by a writ of error or a proceeding in the nature of a writ coram nobis; and the third method is by an independent suit.
This court has heard cases wherein the last of these three methods of procedure was followed: Sturm v. Cooper, et al.,145 Or. 583, 28 P.2d 231; Sedlak v. Sedlak, 14 Or. 540,13 P. 452.
The courts are not in agreement as to the propriety of the course pursued herein. The following cases hold that the issue should be presented by an independent suit or action. Watson v.Watson, 1 Hun. 267, 47 How. Pr. 240; Groh v. Groh, 35 Misc Rep. 354, *Page 479 71 N.Y.S. 985; Morey v. Morey, 164 Misc. 527, 299 N.Y.S. 161; Zoellnerv. Zoellner, 46 Mich. 511, 9 N.W. 831.
The course taken herein has been followed in the following cases: Gambe v. Gambe, 22 Pa. C. 23; Fidelity InsuranceCo., Appeal, 93 Pa. 242, sc. under title Peterson v. Peterson, 6 W.N.C. 449; Smith v. Smith, 3 Phila. 489, sc. Boyd'sAppeal, 38 Pa. 241; Bay v. Bay, et al., 85 Ohio St. 417,98 N.E. 109; Vincent v. Black, 30 Idaho 636, 166 P. 923.
Contra: Owens v. Sims, 3 Coldw. (Tenn.) 544; Parish v.Parish, 9 Ohio St. 534, 75 Am. Dec. 482; Dwyer v. Nolan,40 Wash. 459, 82 P. 746, 5 Ann. Cas. 890, 1 L.R.A. (N.S.) 551, 111 Am. St. Rep. 919.
A writ of error was invoked in the following cases: Wren v.Moss, et al., 7 Ill. 72; Israel v. Arthur, Admr. 6 Colo. 85,7 Colo. 12, 1 P. 442; Givernaud v. Givernaud, 81 N.J. Eq. 66,85 A. 830.
Besides the Oregon cases mentioned, independent suits were instituted in the following cases: Johnson v. Coleman,23 Wis. 452, 99 Am. Dec. 193; Bomsta v. Johnson, 38 Minn. 230,36 N.W. 341; Rawlins v. Rawlins, et al., 18 Fla. 345; McCraney v.McCraney, 5 Iowa 232, 68 Am. Dec. 702; Rine v. Hodgson, 9 Ohio Dec. Rep. 275, 9 Ohio Dec. Rep. 104; Fritz v. Fritz, 6 Ohio N.P. 258, 9 Ohio Dec. 274; Brown, et al. v. Grove, 116 Ind. 84,18 N.E. 387, 9 Am. St. Rep. 823; Hill v. Victoria, 180 Iowa 417, 161 N.W. 72; Wood v. Wood, 136 Iowa 128, 113 N.W. 492, 125 Am. St. 223; 12 L.R.A. 891; Lawrence v. Nelson, 113 Iowa 277,85 N.W. 84, 57 L.R.A. 583; Leathers v. Stewart, 108 Me. 96,79 A. 16, Ann. Cas. 1913B, 366.
In the instant case, criticism is made of intervener's transcript on appeal as not properly certified. *Page 480
The transcript of testimony is subject to this criticism.Nealan v. Ring, 98 Or. 490, 493, 193 P. 199; Johnson v.Johnson, 131 Or. 235, 282 P. 1082; Little Applegate ImprovementDistrict v. Munsell, 134 Or. 132, 291 P. 369.
Intervener is hereby granted 20 days from the entry of this order within which to serve and file proper certification of said transcript of testimony.
Defendant's motion to dismiss intervener's appeal is denied.