Pringle v. Pringle, 55 Wash. 93, 104 Pac. 135 (1909).

[No. 8056. Department Two. September 29, 1909.]
EMMA PRINGLE, Respondent, v. T. N. PRINGLE, Appellant. 1

requiring the payment of suit money as a condition precedent
to the hearing of a petition to vacate a fraudulent judgment
of divorce, in default of which the opposing party might move
for a dismissal of the petition, is appealable, under Bal.
Code, SS 6500, authorizing appeals from final judgments or
orders which in effect determine the action or prevent a final
judgment therein.

APPEAL - REVIEW - DISCRETION. The discretion of the court in
imposing terms as a condition precedent to the vacation of a
default judgment, is not an arbitrary one that may not be
reviewed on appeal.

default judgment of divorce was secured by a wife through fraud,
and all the property was awarded to her and in her possession,
and it does not appear that the husband has any means, it is
error to require the husband to pay $50 suit money as a
condition precedent to the prosecution of a petition to vacate
the decree.

Appeal from an order of the superior court for Mason
county, Mitchell, J., entered January 23, 1909, upon findings
in favor of the plaintiff, after a trial on the merits before the
court without a jury, in an action to vacate a decree of divorce.

W. H. Abel and O. M. Nelson, for appellant.

E. N. Steele, for respondent.

PER CURIAM. - We are met at the threshold of this case
with a motion to dismiss the appeal. It is urged that the
order from which the appeal is prosecuted is not final. It is

1 Reported in 104 Pac. 135.

                Opinion Per Curiam.                55 Wash.

true that no order of dismissal was entered by the court
below, but the order made (from which we will hereafter quote)
was effectual to conclude the rights of the appellant. The
order does not involve the merits of the controversy so as to
be reviewable on appeal from a final judgment. The finality
of an order should be determined by its legal effect rather
than by reference to its form, and when so considered the
order of the court is well within the provisions of Bal. Code,
SS 6500 (P. C. SS 1048).

Respondent began an action in Mason county against
appellant, and obtained a decree of divorce upon constructive
service. The proceedings appear to be regular. A return
that appellant could not be found in either Mason or
Chehalis county was made by the respective sheriff's of those
counties. A trial was had and a decree rendered, in which it
was adjudged that respondent was entitled to a divorce and
all of the property belonging to the community, as well as
the custody of the children. Within the statutory period of
time allowed for the vacation of judgments by petition,
appellant petitioned the court for an order vacating the
decree and asking leave to defend the action. The basis of
his petition rested upon the asserted fact that be had at all
times during the pendency of the action resided in Chehalis
county; that his place of residence and postoffice address
were well known to respondent; that such proceedings were
had in the principal case that the court was misled and
imposed upon so that a fraud was perpetrated upon appellant
and upon the court.

This petition was met by respondent with a motion for an
order allowing attorney's fees and suit money. This motion
was supported by affidavits showing her present financial
inability to resist the petition. While the transcript shows
the technical regularity of the service, the paramount fact
that respondent at all times knew of the whereabouts and
place of residence of appellant was not denied by her. The
affidavits filed in support of the motion were met by a counter

                PRINGLE v. PRINGLE.                     95
 Sept. 1909          Opinion Per Curiam.

affidavit of appellant showing that respondent was in
possession of all of the property belonging to the community,
both real and personal, while he was without means and
ability to comply with the demands of respondent. The motion
being heard, the court made an order denying the rights of
appellant to be heard unless he met the terms imposed by
the court. The material parts of the order are as follows:

"That the defendant be and he is hereby required to pay
into the above entitled court for the use and benefit of the
plaintiff, before he is permitted to proceed further with his
petition to open up the judgment and decree herein, and
before the plaintiff is required to make her showing in
resistance thereto, the sum of $50 as an attorney's fee, and
the further sum of $25 as suit money. The said money to
be paid into the above entitled court by the said defendant
within 20 days from this date, and if not so paid then the
said petition of the defendant may he refused and dismissed
upon motion of the plaintiff. This order not to interfere
with or prevent such further order as the court may

The position of respondent is that the imposition of terms
is a matter resting in the sound discretion of the trial court,
and she further sustains her contention by reference to Bal.
Code, SS 5722 (P. C. SS 4636), wherein it is provided that the
court may make a proper allowance for suit money and
attorney's fees in behalf of a wife seeking a divorce. It is the
general rule that the imposition of terms, as a condition
precedent to the vacation of a judgment, is a matter within
the sound discretion of the trial court; but the rule is not
absolute, nor is the discretion arbitrary so as to prevent
review in a proper proceeding. While at common law and
under the accepted practice of our courts, the court has the
right to impose terms, it has never been held to be the law
that terms that were oppressive or unjust could he imposed at
the will of the court, nor is the right of a wife to suit, money
and attorney's fees an absolute right. While the section of
the statute relied upon seems to have been drawn prior to the

                Opinion Per Curiam.                55 Wash.

enactment of the community property law, it must be
construed with reference to it. Its object was to insure the wife
an efficient preparation of her case and maintenance pending
the trial. If she be otherwise provided for or have property
in her own right, there can be no reason for the assertion
of the right to an allowance out of the separate property of
her husband, or to put upon him the burden of maintaining
the suit. In the case at bar, the record shows that all of the
property of the community, whatever it may be, is in the
custody of the respondent, and there is nothing to show that
appellant has any means whatever. All orders imposing
terms should be made in furtherance of justice. Prima facie
the order of the court was unwarranted and arbitrary.

This case is not to be measured by the general rules
applying where a party is relieved as an act of grace or favor
from a situation arising from laches or inattention. The
nature of the attack, as well as the character of the case,
invites investigation on the part of the court, and all orders,
although warranted by facts which may be subsequently
developed, should be postponed until the jurisdiction of the
court is determined. In the recent case of Holcomb v.
58 Wash. 611, 102 Pac. 653, we held that financial
inability would excuse the payment of alimony. It would
seem that in like principle a party should not be barred of
the right to have the legality of a judgment inquired into
because of inability to meet the payment of terms assessed
as suit money and attorney's fees. But the principle
involved strikes deeper than would appear upon first
impression. The decree was not merely irregular but, if the facts
asserted by appellant be true, was a fraud upon the court.
Upon suggestion of this, a court should promptly make such
inquiry and finding as will protect and preserve the integrity
and sanctity of its decrees, and this without reference to the
relative rights and duties of the parties. Then, too, this is
a divorce case in which the public has an interest, and this
alone, coupled with a challenge to the jurisdiction of the

                    STATE v. SWAN.                     97
 Sept. 1909               Syllabus.

court, affords sufficient grounds for hearing the complaint
of appellant without terms and unconditionally. Graham v.
54 Wash. 70, 102 Pac. 891. The supreme court
of California in the case of Cottrell v. Cottrell, 83 Cal. 457,
23 Pac. 531, in passing upon a question like unto the one
now before us, adopted the following apt statement of the
law from the case of McBlain v. McBlain, 77 Cal. 507, 20
Pac. 61:

"The parties to the action are not the only people
interested in the result thereof. The public has an interest in
the result of every suit for divorce; the policy and letter of
the law concur in guarding against collusion and fraud; and
it should be the aim of the court to afford the fullest possible
hearing in such matters."

The first question for the court to determine is, not whether
appellant has a cause of action, but whether a fraud has been
practiced upon the court. Bal. Code, SS 5159 (P. C. SS 1041).

We express no opinion upon the merits, but reverse and
remand the case with instructions to the lower court to
inquire into the regularity of its former proceedings, and
thereupon to make such order and disposition of the case as the
facts may warrant.