¶1dissenting.
¶2The plaintiff appellee presents .a question in this case which the majority opinion does not answer.
¶3This record shows that the parties were married May 11, 1935. On April 2, 1937, the husband obtained a default divorce decree against the wife, a property settlement having been made. The parties went back to living together in November, 1937. January 22, 1938, the wife made application to set aside the divorce decree. Notice was served upon the husband. He did not appear. It does not appear that fraud in securing the order of April, 1937, was charged. On February 25, 1938, the trial court signed an order setting aside the decree of April 2, 1937. .
¶4This information is gathered from the oral testimony. The pleadings and evidence taken at the hearing- on February 25, 1938, are not in the record. The plaintiff, not questioning the validity of the order of February 25, 1938, instituted this action for divorce. The legality of the 1938 proceeding was not questioned in the trial court. It is presented for the first time here, by counsel who was not in the case in the trial court. May the question properly be presented on appeal where it was not raised in the trial court?
¶5The plaintiff husband contends that by the provision of section 42-340, Comp. St. 1929, the decree of April 2, 1937, “became final” six months thereafter and that the order of February 25, 1938, was a nullity, that the parties were not remarried by that order or otherwise, and there being no remarriage, there can be no divorce.
¶6The defendant wife contends that the provisions of sections 20-2001 and 20-2008, Comp. St. 1929, authorize the action taken by the trial court. Which contention is correct?
¶7This is not an ordinary lawsuit. The state has an interest in the matter of marriage and divorce. These questions should not be ignored but should be answered before the question of modification or affirmance of the decree of the trial court is determined.