The opinion
On Petition eor Rehearing
Before Lusk, Chief Justice, and Brand, Belt and Hay, Justices.
BELT, J.
On petition for rehearing:
It is earnestly urged that the court erred in holding that the plaintiff is not entitled to the equitable relief of vacating or setting aside the decree of divorce for the reason that no meritorious defense to the complaint in such proceeding was alleged. In our opinion the fallacy of such contention lies in the assumption that the decree of divorce was void on the face of the record. It is conceded — and it was definitely so held in the opinion on original hearing — that if the decree was void on its face, a meritorious defense need not be alleged. We adhere to that position. Jurisdiction of the plaintiff — the defendant in the divorce suit — could have been acquired by (1) valid constructive service of process, or (2) general appearance in court by an attorney authorized to appear for him. The court in its decree recited that the defendant therein was “rep *549 resented in this Court by W. B. Shiviey, his attorney.” It is presumed that Mr. Shively was authorized to represent the defendant. It is reasonable to assume that Shively, being an officer of the court, would not make an appearance for a client unless he was authorized to do so. To avoid the legal effect of the recital in the decree, plaintiff in the instant suit alleged:
“That defendant in said divorce proceeding was not served with summons and complaint therein within the State of Oregon nor did he authorize any attorney or person whomsoever to appear for him in said proceeding. ’ ’
The decree is regular and valid on its face. If, in fact, Mr. Shively was not authorized to represent the defendant in the divorce proceeding, he would not be bound thereby and the court could not have acquired jurisdiction over his person by reason thereof. What has been said is aside from the question of the validity of the constructive service of process.
After having again given careful consideration to this cause, we are convinced that plaintiff is not entitled to the equitable relief sought. In this petition for rehearing plaintiff does not contend that the decree of divorce rendered against him was unjust or that he did not have actual knowledge of the pendency of the suit.
The petition for rehearing is denied.