
    Crouch vs. Crouch.
    SUMMONS: (1) Order for service of by publication, a judicial act. (2) Proceedings under void- order for publication of, when set aside.
    
    Divobce : (3) Proceedings in, when set aside. (4) Subsequent marriage ■ and birth of issue will not modify the rule.
    
    Judgment: (5) Should be vacated as soon as its fraudulent character is determined.
    
    1. The making of an order for service of summons by publication is a judicial act, which cannot be performed by a court commissioner in an action wherein he is plaintiff’s attorney; and an order so made is nullity.
    2. Where defendants after publication of the summons under avoid order, does not appear or waive his rights, all subsequent proceedings against him are invalid, and should be set aside, with the order, on his motion.
    3. Where an order for publication of the summons in a divorce case, and a judgment of divorce, were obtained by plaintiff by swearing falsely that she did not know defendant’s residence or stopping place, the order and all subsequent proceedings should be vacated.
    4. The fact that plaintiff has married since judgment was rendered, and that a child of such marriage has been born, will not authorize the court to modify the law.
    
      5. Ch. 409, laws of 1865 (which provides a certain remedy in behalf of the plaintiff, in an action wherein a judgment has been rendered for him, based upon an invalid service of summons by publication), does not apply to a judgment obtained by gross fraud upon the court and the defendant; and such a judgment should be set aside as soon as its true character is judicially determined.
    APPEAL from the Circuit Court for Richland County.
    This action is for a divorce. On the 28th of October, 1867, the plaintiff made an affidavit, stating, among other things, that “ the said defendant cannot, after due diligence, be found within this state; and his residence cannot, with reasonable diligence, be ascertained by this deponent, and is unknown to her.” On this affidavit a court commissioner, who was one of the plaintiffs attorneys in the action, made the usual order that the summons be served on the defendant by publication. The defendant not appearing to the action within the prescribed rime, the proofs were taken by a referee, April 14, 1868, ex parte, and two days afterwards a judgment of divorce was rendered by the circuit court The plaintiff testified before the referee that she did not know where the defendant was; that she had no knowledge of his whereabouts.
    In April, 1871, the defendant obtained an order on the plaintiff to show cause why the order of publication, the report of the referee, and the judgment in the action, should not be set aside, for the reasons, among others, that such order was void, and that the judgment was obtained by fraud. The order to show cause and the motion papers were served upon the attorneys for the plaintiff, May 8th, and upon the plaintiff personally October 28, 1871.
    The circuit court, by an order dated October 26, 1871, discharged the order to show cause, and refused to vacate and set aside the order of publication, report and judgment. The facts which appeared on the hearing of the order to show cause are stated in the opinion. This appeal is taken by the defendant from the order of - October 26th, above mentioned.
    
      
      M. M. Coikren, for appellant.
    
      Eastland & Eastland, contra.
    
   Lyoít, J.

Tbe judgment of divorce in this action was rendered because of tbe alleged wilful desertion of tbe plaintiff by tbe defendant; and it appears by tbe affidavits served witb tbe order to show cause, and wbicb are undisputed, that tbe defendant did not desert tbe plaintiff, and has, therefore, a perfect defense to tbe action; that be did not know that such judgment bad been rendered against him until December 23,'1870 ; and that tbe plaintiff knew where be was during all of tbe time be was absent, and frequently wrote letters to him wbicb be received. He produced two of these letters in her band writing, received by him by mail, one of wbicb bears date October 27, 1867, (tbe day before she made tbe affidavit to procure tbe order of- publication), and tbe other March 28, 1868 — less than three weeks before she gave her testimony before tbe referee. Tbe first of these letters was addressed to him at St. David’s, Eulton county, Ill., where be bad been for more than a year and a half; and tbe latter was addressed to him in her band-' writing, at Hanover P. 0., Eock county, Wis., wbicb was distant only three miles from where be was then stopping.

Under this state of facts, neither tbe order of publication nor tbe judgment can be sustained.

1. Tbe order of publication is a nullity. Tbe granting of such an order is a judicial act. Tbe commissioner or other officer granting it must bear evidence, and must be satisfied therefrom of tbe existence of certain facts; be must deliberate, decide, adjudge. That an attorney in an action is utterly disqualified from performing these judicial functions in any matter pertaining to such action, is too clear for argument, and too well settled to require tbe citation of authorities. Tbe defendant not having appeared in tbe action, all of tbe subsequent proceedings, including tbe judgment, depend for their validity upon tbe validity of tbe order of publication. They stand or fall with it. In tbis case tbe order of publication being a nullit y, so also is tbe judgment,and tbe court should bave swept them from its records. Hurd v. Jarvis, 1 Pinney’s Wis., 475.

2. But tbe order and judgment are void for another reason. It is a verity in tbis case that when the plaintiff made tbe affidavit upon which tbe order of publication was granted, she knew the residence or stopping place of tbe defendant. She also knew where be was, when she testified before tbe referee. Yet she studiously concealed these facts from tbe commissioner and the court, for tbe evident purpose of obtaining a judgment of divorce without tbe knowledge of tbe defendant. To accomplish that purpose tbe record shows quite conclusively that she swore falsely on two occasions during tbe progress of tbe action. Tbis was a gross and inexcusable fraud upon the court and tbe defendant, and vitiates tbe whole of tbe proceedings. Por tbis reason alone tbe order of publication and all subsequent proceedings, including tbe judgment, should bave been set aside.

It is stated in the brief of her counsel, that since tbe judgment of divorce was rendered, tbe plaintiff has married another husband, to whom she has borne a child. We sympathize with tbe parties who have placed themselves in this unfortunate position, and more especially do we regret that we are compelled to make a decision which will render tbe child of tbis last ill-advised union, illegitimate. But we have no power to breathe life into these void proceedings. Bet tbe consequences be ever so disastrous to individuals, we can only declare tbe law as we find it We bave no authority to modify it in cases of supposed hardship.

Tbis case illustrates tbe necessity of so amending our divorce laws that divorced parties be prohibited from again marrying until after tbe time for taking an appeal to tbis court has expired, and, in case an appeal is taken, then until tbe same is finally disposed of. Under such a law parties could not place themselves in tbe situation of tbis plaintiff and tbe man to whom she was last married.

Tbe counsel for plaintiff claims tbat sbe should be permitted to take proceedings under ch. 409, Laws of 1865 (Tay. Stats., 1483, § 17,) to save tbe judgment, Tbat law is applicable by its terms to cases where tbe order fails to give tbe court jurisdiction of tbe defendant. Were there no objections to these proceedings other than that the commissioner had no power to make the order of publication, there seems to be no good reason why the defendant might not be brought into court under that law, and the plaintiff have an opportunity to demonstrate, if she could, that the judgment ought to stand. But evidently the act was not intended to extend to a judgment obtained by the grossest fraud upon tbe court and the defendant. A judgment thus obtained should be vacated and set aside at the earliest moment after its true character is judicially determined.

The order appealed from must be reversed, and the cause remanded with directions to the circuit court to set aside and vacate the order of publication and all subsequent proceedings in the action, including the judgment of divorce therein.

By the Court. — It is so ordered.  