“A meeting of the minds can be found from performance 24 and acquiescence in that performance.”
How later courts described this case
- “A meeting of the minds can be found from performance 24 and acquiescence in that performance.”
Written by the judges who cited it.
The opinion
Fairchild, J.
{dissenting in part).
I agree with the determination in the majority opinion that this'judgment is not ruled by the regulations affecting the usual judgment in law cases. But I do not find it possible to agree that we have the right to impose a condition upon the trial court’s right to vacate the judgment in the divorce action. The trial court has been given the right to vacate a judgment of divorce within the year for sufficient cause. Under the rule now declared one of the parties may veto the order of the trial court.
In the case before us, it appears that the suit when brought, was by collusion. The defendant induced the plaintiff to begin the action. She testified that “It isn’t a matter of wanting
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a divorce or not wanting a divorce; just the fact that when this thing came up he volunteered to leave the state.”
“Q.
If he had resided outside the state, what then?
A.
He wouldn’t have heard from us.”
The agreement evidently brought the result that there was not a judicial examination which would have enabled the trial court to determine whether the acts of the defendant were prompted, encouraged, or connived at by the plaintiff. If both were at fault, or one had condoned the acts of the other, neither should have been granted the divorce, and the only agreement they could make which would lead ultimately to a decree would be such an agreement as is usually referred to as a voluntary separation for five years. For these reasons I am convinced that the trial court properly and for sufficient cause set aside the judgment and left the parties in the position in which they find themselves.
Granting of divorces may .be necessary but they are not to be encouraged. The legislature, in fixing a period of one year after a judgment of divorce within which the persons shall not remarry, and in cases of incompatibility not particularly affecting the health of either party, a period of five years before a cause of action matures, has done so in the expectation that the home may be re-established.