Dodge v. Dodge

The plaintiff and the defendant Dodge intermarried on March 28, 1877. Twenty years later Mrs. Dodge brought an action for an absolute divorce in this court, based upon acts of adultery alleged to have been committed by her husband in Atlanta, Ga. The summons in that action was claimed to have been served by the plaintiff’s attorney therein at the Everett House, in the city of New York, upon the defendant Dodge. Thereafter a notice of appearance and an answer were served on behalf of defendant by Mr. Mortimer A. Ruger, an attorney then engaged in practice in the city of New York, who has since died. After the joinder of issue an order of reference was issued upon consent to a referee to hear and determine the issues and report to the court. The reference was executed, a report was made in favor of the plaintiff, the court confirmed the report, and a decree of divorce was granted on March 26, 1896. Thereafter, and on June 18, 1901, Mrs. Dodge, believing that the decree of divorce was in all respects valid, married Charles W. Morse, of the city of New York. On October 20, 1903—more than five years after the decree of divorce, and over three years after the marriage of the plaintiff therein to Morse—the defendant Dodge applied to the Supreme Court to vacate the decree of divorce upon the ground that the summons in the action had never been served upon him, and that he had not authorized Ruger to appear or answer for him in that action. When this motion came on to be heard, a reference was ordered to take proof and report to the court with the opinion of the referee thereon. An exhaustive hearing was had before the referee, wherein the defendant Dodge testified that he was not in the city of New York at the time when the summons was claimed to have been served upon him, that he did not know the attorney Ruger, and that he had never authorized his appearance and answer in his behalf. Other proof was offered tending to corroborate Dodge’s testimony, and the referee reported in his favor, recommending an annulment of the decree of divorce. This report was confirmed by the court, and an order entered thereon December 3, 1903, vacating the decree for lack of jurisdiction in the court to pronounce it. Shortly after, the plaintiff in the action commenced an action' to

It is clear that the position occupied by Charles W. Morse upon discovering the letters written by Dodge required that he immediately intervene for the purpose of establishing the innocence of his wife in contracting the marriage and vindicating her character as well as his own. These steps were taken promptly upon discovery of the facts, and the purpose which he thus sought to accomplish ought not to bé defeated by any consideration short of an overwhelming necessity. There.is some doubt as to whether Dodge was or was not personally served with the summons, but this is

It was suggested upon this appeal that the parties in the action of divorce were guilty of collusion. If by collusion is meant that Mrs. Dodge and her attorney, by arrangement with Dodge, took steps to facilitate the proceedings, there would be force in the suggestion ; but the collusion that would be fatal here to a valid decree is collusion in procuring or conniving at the act or acts of adultery. It is not pretended that the plaintiff had any knowledge, collusive or otherwise, of the offenses committed by her husband at Atlanta, Ga. He was then residing there and she in New York, and there is no room for the suggestion that she colluded with him to commit the offense. Doeme v. Doeme, 96 App. Div. 285 , 89 N. Y. Supp. 215 . The parties who have since that decree innocently intermarried are entitled to every consideration to the protection of the coiirt in the vindication of their innocence and integrity.

The order which has been granted was clearly right, and it should therefore be affirmed, with $10 costs and disbursements. All concur; VAN BRUNT, P. ]., in result only.