Bedal v. Sake

Decision Date28 June 1904
Citation77 P. 638,10 Idaho 270
PartiesBEDAL v. SAKE
CourtIdaho Supreme Court

DECREE OF DIVORCE-EFFECT ON COMMUNITY PROPERTY, WHEN RENDERED IN FOREIGN JURISDICTION.

1. Where the wife abandons her husband and home in the state of Idaho, takes up her residence in the state of Oregon, and thereafter procures a decree of divorce on service by publication, forms a new community by another marriage, eight years and more after abandoning her husband returns to Idaho and by an action in the name of herself and husband as coplaintiff with her, seeks to obtain her interest in the homestead of herself and former husband, held, that after forming a new community she abandons all claim on the old one and cannot recover.

2. One who voluntarily leaves this jurisdiction and the domicile and community property located in this state and obtains a decree of divorce in another jurisdiction, cannot maintain an independent action thereafter in this jurisdiction for a division of the community property.

(Syllabus by the court.)

APPEAL from the District Court of Ada County. Honorable George H Stewart, Judge.

Action to recover community property. Demurrer interposed by defendant which was sustained. Judgment for respondent for costs. Judgment affirmed.

Judgment affirmed, with costs to respondent.

C. C Cavanah, for Appellant.

The primary question involved in this case is whether either party to a decree of divorce may thereafter maintain an action for a partition of an undivided one-half interest in the real property acquired during their marriage when the pleadings and decree in said divorce proceedings did not refer to or determine any disposition of any property, and such decree was rendered in a state other than where such property is situated. We contend that such an action can be maintained, and the rule is now settled in De Godey v Godey, 39 Cal. 157; In re Burdick's Estate, 112 Cal. 387, 44 P. 734-737; Biggi v. Biggi, 98 Cal. 38, 32 P. 803; Kirschner v. Dietrich, 110 Cal. 502, 42 P. 1064; Galland v. Galland, 38 Cal. 271; Lake v. Bender, 18 Nev. 361, 4 P. 711, 7 P. 74; Weiss v. Bethel, 8 Or. 526; Whetstone v. Coffey, 48 Tex. 269; Colvin v. Reed, 55 Pa. 375; Reel v. Elder, 62 Pa. 308, 1 Am. Rep. 414. The decree in the divorce suit could not operate as res judicata or be a bar to the recovery of an interest in the common property, unless it was made an issue and the court granting the divorce passed upon the question, and was within the state where the property is situated. (Greenleaf's Evidence, secs. 528, 529, 532; Earl v. Bull, 15 Cal. 421; Minor v. Walter, 17 Mass. 237.)

T. J. Jones and T. Cahalan, for Respondent.

The respondent contends that so far as the plaintiff's amended complaint shows, the plaintiff, Maggie Bedal, without cause or provocation, on the thirtieth day of January, 1895, abandoned the defendant and their family and their homestead and voluntarily placed herself beyond the jurisdiction of the courts of the state of Idaho and submitted herself to the jurisdiction of the courts of a foreign state (Oregon). The Oregon law reads as follows: "In a suit for the dissolution of the marriage contract the plaintiff therein must be an inhabitant of the state at the commencement of the suit, and for one year prior thereto, which residence shall be sufficient to give the court jurisdiction without regard to the place where the marriage was solemnized or the cause of suit arose." The above has been the law in Oregon since 1862, and is still the law. (1 Hill's Annotated Laws of Oregon, p. 454, sec. 497; 1 Bellinger & Cotton's Annotated Codes and Statutes of Oregon (1901), p. 277, sec. 509.) Where homestead rights exist the wife surrenders her interest therein by abandoning her husband and home without legal excuse. (Farwell Brick Tile etc. Co. v. McKenna, 86 Mich. 283, 48 N.W. 959; Brady v. Kreuger, 8 S. Dak. 464, 59 Am. St. Rep. 775, 66 N.W. 1083; Rosholt v. Mehus, 3 N. Dak. 513, 57 N.W. 783, 23 L. R. A. 239; Wiggin v. Buzzell, 58 N.H. 329; Heaton v. Sawyer, 60 Vt. 495, 15 A. 166; Redfern v. Redfern, 38 Ill. 509; Dasel v. Coburn, 6 Allen, 71; Byers v. Byers, 21 Iowa 268; Biffle v. Pullman, 114 Mo. 50, 21 S.W. 250; Barnett v. Barnett, 9 N. Mex. 205, 50 P. 340; Roe v. Roe, 52 Kan. 724, 39 Am. St. Rep. 367, 35 P. 808.)

STOCKSLAGER, J. Ailshie, J., concurs. SULLIVAN, C. J., Dissenting.

OPINION

STOCKSLAGER, J.

The plaintiffs filed their amended complaint, to which defendant demurred. The demurrer was sustained and plaintiffs refusing to further plead, judgment was ordered entered in favor of defendant for costs.

The amended complaint alleges that plaintiffs, Charles Bedal and Maggie Bedal, ever since the twentieth day of March, 1900, have been husband and wife; that the plaintiff, Maggie Bedal, and the defendant, Harry Sake, are the joint owners and tenants in common of eighty acres of land in Ada county; alleges the marriage of Maggie Bedal and Harry Sake in the state of Iowa in the year 1872, "and thereafter lived together as husband and wife until January, 1895; that in the month of March, 1899, said Maggie Bedal commenced a suit against said Harry Sake for a divorce in the circuit court of the state of Oregon, in the county of Clackamas, and in the month of May, 1899, a decree of divorce was duly allowed and entered, . . . . and that said decree of divorce is now in full force and effect; . . . . that no mention was made in said plaintiff's complaint for divorce of any property of any kind or description whatever, nor was any property rights of said parties mentioned in any of the proceedings, nor did said court adjudge or decree any property rights or give plaintiff any alimony, or require said Harry Sake to give or pay to plaintiff in that action any money or property. . . . The only effect of the decree being to dissolve the marriage relation. . . . That there never has been any settlement or agreement of any kind between said plaintiff, Maggie Bedal, and defendant, Harry Sake, of any property rights existing between them, nor has said plaintiff, Maggie Bedal, by any act on her part waived her interest in and to the aforesaid community property; that the said circuit court of Oregon had full jurisdiction at the time said divorce decree was rendered of the said parties and subject matter in said divorce proceedings; that in said divorce proceeding personal service was not had upon said defendant Harry Sake, but service was duly had by publication in compliance with the laws of the state of Oregon relative to service by publication in divorce proceedings; that at the date of said decree of divorce said plaintiff, Maggie Bedal, and said defendant, Harry Sake, were, now are, and ever since said date of said decree, joint owners and tenants in common of all of the aforesaid real property, and the whole thereof was acquired, purchased and taken up from the United States government with the efforts, labor and expense of both plaintiff, Maggie Bedal and defendant, Harry Sake, during the time they were living together as husband and wife; that on or about October 4, 1893, with the consent and request of said defendant, Harry Sake, said plaintiff, Maggie Bedal, filed for record a written declaration of homestead upon the aforesaid real property in recorder's office of Ada county; said declaration was duly signed and acknowledged by said Maggie Bedal in the name of Maggie Sake, who at the time was the lawful wife of said Harry Sake, and was living and residing upon said real property with said defendant as their home and place of residence."

The fourth allegation is that plaintiffs are informed and believe, and therefore allege, that Maggie Bedal is now the owner of and entitled to an undivided one-half part or interest in and to the aforesaid real estate, and that Harry Sake is now the owner also of an undivided one-half part or interest in said real estate; that defendant, Harry Sake, now is, and ever since on or about the thirtieth day of January 1895, has been, in the possession of said property, and does, and has ever since said date, refused to allow said plaintiff, Maggie Bedal, to enter upon, take possession, occupy or use said real estate or any part thereof, although she has requested and demanded said defendant to allow her to use said real estate, and has asserted her rights to her interest in said property by claiming and notifying said defendant as to the same; that she has never made conveyance of her said interest in said property to anyone; that there are no liens or encumbrances on said property appearing of record or to the knowledge of plaintiffs, and that no persons other than the said plaintiff, Maggie Bedal, and said defendant are interested in said premises as owners or otherwise. That plaintiffs are informed and believe, and therefore allege, that said premises produce each year a crop of the value of $ 500 net over and above all expenses necessary for maintaining said premises and the raising of said crop, and that said premises have produced said crops each year since on or about the thirtieth day of January, 1895. Then follows a prayer for judgment for a partition of the said real property according to the respective rights of the parties aforesaid; or if a partition cannot be had without material injury to those rights, then for a sale of said premises and a division of the proceeds. The demurrer to this complaint is on two grounds: "1. That the complaint does not state facts sufficient to constitute a cause of action. 2. That said complaint is ambiguous, unintelligible and uncertain in this: that paragraph 3 of said amended complaint, commencing at the word 'that' in the fourteenth line of said paragraph to and including the word 'Sake' in the thirtieth line of said paragraph is a single...

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11 cases
  • Rodieck v. Rodieck
    • United States
    • Arizona Court of Appeals
    • 13 Febrero 1969
    ...91 (1941). The remaining four community property states allow division of the community only upon absolute divorce. Bedal v. Sake, 10 Idaho 270, 77 P. 638, 66 L.R.A. 60 4 (1904); N.R.S. § 125.150 (Nev.); Pelham v. Sanders, 290 S.W.2d 684 (Tex.Civ.App. 1956); Cohn v. Cohn, Our statute on sep......
  • Huber v. Huber
    • United States
    • New York Supreme Court
    • 19 Diciembre 1960
    ...in so far as the community property is concerned.' The Supreme Court of Idaho reached a similar conclusion in Bedal v . Sake, 10 Idaho 270, 77 P. 638, 66 L.R.A. 60, holding that one who voluntarily left Idaho and the domicile and community property located there and obtained a decree of div......
  • Kohny v. Dunbar
    • United States
    • Idaho Supreme Court
    • 30 Enero 1912
    ... ... Johns, 17 Idaho 224, 105 P. 71; Ray v. Ray, 1 ... Idaho 566; Wilson v. Wilson, 6 Idaho 597, 57 P. 708; ... Bedal v. Sake, 10 Idaho 270, 77 P. 638, 66 L. R. A ... 60; Bank of Commerce v. Baldwin, 14 Idaho 75, 93 P ... 504, 17 L. R. A., N. S., 676.) ... ...
  • Radermacher v. Radermacher
    • United States
    • Idaho Supreme Court
    • 21 Marzo 1940
    ...or a divorce or death has terminated the marital relation. (Sauvageau v. Sauvageau, 59 Idaho 190, 81 P.2d 731.) In Bedal v. Sake, 10 Idaho 270, 276, 77 P. 638, 66 R. A. 60, this court said: "The statute of this state only gives the court power to dispose of community property after the divo......
  • Request a trial to view additional results

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