Boyce v. Boyce
Boyce v. Boyce
Opinion of the Court
Plaintiff obtained in this action a decree of absolute divorce. This decree recited: “Plaintiff is now and has been' a resident of the state of South Dakota for more than six months prior to the commencement of this action.”. Something over two years after the entry of the decree the defendant applied to the trial court and ¡procured an order to show cause, requiring plaintiff to show cause “why an order should not be made * * * vacating and setting aside the judgment and decree. * * *” Such order to show cause was issued upon an affidavit setting forth "that neither the plaintiff nor defendant was, at any time previous to the commencing of. said- action or the determination ■thereof, a resident or inhabitant of Campbell county, * * * state of South Dakota, and that said court had no jurisdiction to try-said action for divorce, or to enter any judgment therein.” Campbell was the county wherein said action was brought and tried. Pending the hearing upon- ¡the order to show cause, one Virginia Dee Boyce was allowed to intervene herein; it appearing- that after the entering of the decree of divorce, and in reliance thereupon, she had married the plaintiff, and that she had. since given birth to a child, the issue of such marriage. Defendant was allowed to amend the affidavit upon which the order to' show cause was based; such amended affidavit stating- that neither plaintiff nor defendant was a resident of -this- state prior to the bringing of the action, or at the date of the determination thereof.
Upon the hearing- of the order to show cause the defendant offered, and there was received in evidence, a purported transcript of the evidence received upon the original trial, as well as numerous depositions. All of these depositions tended to support the claim that neither party was a resident of this state at any time prior to the entry of the decree. The order -to show cause was heard before the successor of the judge who. granted the decree, and the court made an order, which, exclusive of title and venue, was in words and figures as follows: “The above-entitled matter coming on to be heard * * * upon the order to show cause herein. * * * and the plaintiff having filed his objections to the hearing of said order, on the ground that the judgment in said
From this order the defendant presents this appeal, and assigns as reasons why the court erred in refusing to vacate the decree: (1) “That the court had no jurisdiction to render said decree;” (2) “that there was no evidence to sustain the court’s finding that the plaintiff was a resident in South Dakota, in good faith, for six months prior to the commencement of the above-entitled action, and the court therefore did not 'obtain jurisdiction of the subject-matter of said action, 'and did not have jurisdiction to render the decree therein;” (3) “that the court did not have jurisdiction of the subject-matter in said action, for the reason
Even if there -can be found sufficient in the assignments which might have presented to us -the ©ole question that was before the trial court, we cannot consider such question, as- it has been -entirely abandoned by appellant both upon argument and in her brief submitted. In her brief she -claims that she procured -the order-to show cause “on the ground that the plaintiff had failed to establish on the trial the fact that he was a resident. * * *” As the -record shows, this statement of the grounds upon which the order was issued is incorrect. Appellant also states in her brief: “The depositions and affidavits offered at the hearing on the motion to set aside this decree are -not introduced for the purpose of retrying -the question o-f residence.” They could -have been received for no other purpose on the issue raised, and this court must presume they were received for that purpose.
The appellant having .abandoned the sole question presented to the trial court, -the order of such court is affirmed.
Concurring Opinion
I concur in the foregoing opinion on the sole ground that defendant 'has abandoned, by her printed brief, the only effectual assignment of error -contained in- the record. The -entire printed brief discusses questions not -before the lower court on the motion to vacat-e. Whether there was sufficient prima facie true evidence before the court that granted the -decree was wholly immaterial and foreign to the issues -presented on the motion to vacate -the decree. Assignments of error not discussed or mentioned in the printed brief ar-e -deemed -abandoned, and will n-ot be considered on appeal. Johnson v. Knappe, 24 S. D. 407, 123 N. W. 857; Gibson v. Smith, 24 S. D. 514, 124 N. W. 7334 Sioux Falls Brick Co. v. Board of Ed., 25 S. D. 36, 125 N. W. 291; Olson v. Rydl, 25 S. D. 268, 126 N. W. 587.
Reference
- Full Case Name
- WILLIAM D. BOYCE (Virginia Lee Boyce, Intervenor) v. MARY J. BOYCE
- Cited By
- 1 case
- Status
- Published