
    Brown, appellant, v. Brown.
    
      Divorce—defense not allowable after judgment.
    
    In an action for divorce, service was by publication. After judgment defendant, upon showing that he had received no notice, and had a defense, was permitted to defend. Held, that the court had no power to permit a defense under section 135 of Code..
    Appeal from an order of the special term opening a judgment and allowing defendant to answer.
    The action was brought by Charlotte E. Brown against Henry Brown for divorce a vinculo. Sufficient facts appear in the opinion.
    
      Charles W. Dayton & Luke A. Lockwood, for appellant.
    
      H. C. Place, for respondent.
   Barnard, P. J.

This is an action for a divorce. The summons was served by publication. Shortly after the decree was entered, granting an absolute divorce in favor of plaintiff, the court, upon proof that the defendant did not receive any copy summons by mail, or any notice of the publication thereof, and upon affidavits showing a defense, opened the judgment, and permitted defendant to defend; from this order the plaintiff appeals.

By section 135, subdivision 5 of the Code, it is provided, that “ The defendant against whom publication is ordered, or his representatives, on application and sufficient cause shown, at any time before judgment, must be allowed to defend the action, and except in an action for divorce, may in like manner, upon good cause shown, be allowed to defend after judgment, or at any time within one year after notice thereof, and within seven years after its rendition, on such terms as may be just.” This section deprives the court of power to grant the order appealed from.

In all actions, except for divorce, after judgment, the defendant may be allowed to defend within one year after notice of the judgment, and within seven years after its rendition. The legislature doubtless intended to provide for new relations under the judgment — another marriage and birth of children.

The character of the person who should marry such divorced plaintiff, and the legitimacy of his or her children born of such a marriage, are protected by this statute. This exception as to divorce was not in the Code of 1848. Code 1848, § 114. It was first inserted in 1849, and has never been altered since. Code of 1849, § 135, subd. 6.

The order should be reverse 1, and the motion denied without costs.

Order reversed.  