Allen v. Allen

• Decision Date: 10 October 1887
• Citation: 72 Iowa 502,34 N.W. 303
• Parties: ALLEN v. ALLEN.
• Court: Iowa Supreme Court

72 Iowa 502

34 N.W. 303

ALLEN

v.ALLEN.

Supreme Court of Iowa.

October 10, 1887.

Appeal from circuit court, Jackson county; A. J. LEFFINGWELL, Judge.

This is an action for divorce. There was a decree for the plaintiff, and the defendant appeals.D. A. Wynkoop, for appellant.

Ellis & McCoy, for appellee.

ROTHROCK, J.

The petition was filed on the fifth day of January, 1886. The answer was filed on the tenth day of February, 1886. The plaintiff presented a motion for temporary alimony on the eleventh day of February, 1886. A hearing was had upon the motion within a few days thereafter, and the following order was made: “Application for temporary alimony sustained, and defendant ordered to pay the clerk of the court the sum of $200 for the use of the plaintiff; said sum to be paid within twenty days. Defendant excepts.” The defendant failed to pay the money required by the order, and on the twenty-fourth day of March, 1886, the plaintiff filed a motion to strike the defendant's answer from the files, upon the ground that he was in contempt of court by reason of his failure to pay the temporary alimony. This motion was heard upon affidavits in behalf of the plaintiff, and by counter-affidavits upon the part of the defendant. It appears from these affidavits that the defendant not only did not have the money to enable him to comply with the order, but that he was unable to procure the same; and upon the argument of the motion the defendant made the following offer: “Now, upon the argument of the motion to strike defendant's answer from the files because of non-payment of alimony ordered, defendant, in open court, offers to turn out all personal property of which he is possessed, save his wearing apparel, upon the condition that the plaintiff herein will satisfy her allowance of alimony herein, and deliver the same at once to the plaintiff, and convey the same by good and sufficient bill of sale.” The defendant was not the owner of any real estate. The motion to strike the answer from the files was sustained, and on the same day a default was entered against the defendant for want of an answer in said cause; to all of which the defendant excepted. The court proceeded within a few days thereafter to hear the evidence in behalf of the plaintiff, and decreed a divorce as prayed in the petition. The defendant appeared at the hearing for the purpose of cross-examining the plaintiff's witnesses. The question presented for our determination is...