Rep. 531; McBlane v. McBlane, 20 Pac. Rep. 61; Gay v. Grant, 8 S. E. Rep. 99; Hanson v. Hanson, 20 Pac. Rep. 736; Wisdom v. Wisdom, 39 N. W. Rep. 594; Orth v. Orth, 69 Mich. 158. Appearance and motion of defendant to vacate judgment does not cure prior defects. Gay v. Hawes, 8 Cal. 563; Deidesheimer v. Brown, 8 Cal. 340; Zo0f v. Foley, 54 N. W. Rep. 59.
Bartholomew, C. J. This case comes to this court on an appeal from an order entered by the District Court of Cass County on the 23rd day of November, 1892, which vacated and set aside a decree of divorce granted by said court in said action on the 15th day of September, 1891, and dismissed the complaint in said action, with costs. On September 9th, 1892, on the petition of Emma M. Yorke, the defendant and the respondent herein, an order was issued by the judge of said court, citing Louis A. Yorke, the plaintiff and appellant herein, to show cause why such decree should not be vacated. This order was served on M. A. Hildreth, Esq., who had acted as the attorney for plaintiff in procuring such decree. At the final hearing under such citation, the order was entered from which the appeal is taken. The petition upon which the order was granted is exceedingly voluminous. We state such of the ultimate facts, as alleged in the petition, as we deem necessary for a proper understanding of our rulings: Some time in 1889, appellant instituted an action for divorce against respondent in the District Court of Stutsman County, charging her with dissertion. To this action there was an appearance and answer filed, and, the case being thus at issue, the attorney for appellant wrote to the attorney for respondent, who resided in Philadelphia, saying: “Will advise you of further proceedings in the case when the same are taken.” That neither respondent nor her counsel ever received any notice of any further proceedings in said case. That on June 20th, 1890, by order of said court, other counsel were substituted as attorneys for appellant in said case, and on the same day such substituted counsel procured an order dismissing said action without prejudice; and immediately thereafter this action was brought, in Cass
