Decided
January, 1908.
Error
from Shawnee district court; ALSTON W. DANA, judge.
STATEMENT.
THIS
action was commenced in the district court of Shawnee county
by Laura J. Bledsoe to recover damages suffered on account of
the alienation of the affection of her husband, A. Scott
Bledsoe, by the defendant, Etta L. Seaman. The defendant
moved for judgment in her favor on the pleadings, which
motion was allowed and judgment entered accordingly. The
plaintiff seeks to reverse that judgment. It will be
unnecessary to a clear understanding of the points decided to
set out the pleadings in full. The material facts of the
petition are substantially as follow:
"Comes
now said plaintiff and for her amended petition herein
against said defendant says:
"That
heretofore, to wit, on the 22d day of May, 1889, at the city
of Stockton, state of Kansas, this plaintiff, Laura J
Bledsoe, and A. Scott Bledsoe were intermarried, and as the
fruits of said marriage there is now living, of the issue of
said marriage, one child, a girl named Nellie, now fourteen
years of age.
"That
from the time of said marriage until the summer of 1896 said
A. Scott Bledsoe conducted himself toward said plaintiff as a
loving and true husband, and said plaintiff lived happily
with him; that said A. Scott Bledsoe was a minister of the
gospel and a pastor of the Christian church, in good
standing; that said plaintiff and A. Scott Bledsoe had
together, by their mutual efforts, accumulated a fair amount
of property, of the value of at least two thousand dollars
and had continued to be prosperous and happy in each
other's love and affection.
"That
in 1896 said A. Scott Bledsoe was pastor of the Christian
church at Clay Center, Kan., and also at Dennison, Kan
preaching on alternate Sundays at each place; that in April,
1896, on a return trip from Dennison, he met at the station
at Topeka the said defendant, Etta L. Seaman, who claimed to
be an inspired spiritualist lecturer. . . . She was at that
time a married woman, her husband being an aged man residing
at Concordia, Kan. . . . For the express purpose of injuring
said plaintiff, and enticing and procuring the said A. Scott
Bledsoe, her husband, to become alienated in feeling and
affection for and to abandon said plaintiff as his wife, and
to deprive her of the society, comfort, aid and assistance of
her said husband, . . . said defendant . . . urged upon him
the doctrine of free love and procured him to visit her . . .
and eloped with him and lived with him in criminal adultery
in Arkansas, South Dakota, Iowa, Nebraska, and Kansas, and
conspired with him to Violate his duty as a husband and to
commit adultery with her . . . and at and during said times .
. . conspired with him to fraudulently simulate a domicil in
South Dakota, and to swear to and file a petition for divorce
from this plaintiff, and in pursuance of her purpose to
alienate his affection from this plaintiff, and in pursuance
of said conspiracy said defendant and said A. Scott Bledsoe
went to South Dakota for the sole purpose of enabling him to
obtain a divorce from this plaintiff; that said A. Scott
Bledsoe had no other business there than the prosecution of
said divorce suit; that this plaintiff and A. Scott Bledsoe
had never lived together as husband and wife in said South
Dakota, and said A. Scott Bledsoe was never in said state
except as herein stated; that this plaintiff was never a
resident of said state of South Dakota, and was never
actually in said state; and that said A. Scott Bledsoe never
was or became a bona fide resident of said state, and was
never domiciled therein; that he was actually in said state
less than six months prior to the commencement of his said
action for a divorce, and that he had left said state
permanently prior to the commencement of said action, and has
never returned there except temporarily to attend the trial
of his said action for divorce, and that all the time he was
in the state prior to the commencement of said action he was
living in pursuance of the purpose and conspiracy of this
defendant aforesaid, with said defendant in criminal adultery
and in violation of law and decency.
"That
by the law of the state of South Dakota the courts of that
state had no jurisdiction to entertain a petition or render a
divorce unless the plaintiff was and had been for at least
six months prior to the date of the filing the petition for
the same a bona fide resident of said state and domiciled
therein in good faith, and the courts of said state had no
jurisdiction of the subject-matter of said action, and the
decree of divorce rendered therein was and is entirely
without jurisdiction and void, and, notwithstanding said
proceeding and decree, said A. Scott Bledsoe remained and
still remains the husband of this plaintiff.
"That
since leaving South Dakota said defendant, continuing in her
said purpose and said unlawful and wrongful conspiracies, has
lived with him in criminal adultery in the states of Iowa,
Nebraska, and Kansas, and still continues to so live with him
in adultery . . . in the city of Topeka, Kan., without the
privity or consent of this plaintiff; that said defendant has
been absent from the state of Kansas during all of said
period and until less than two years prior to the
commencement of this action.
"That
by reason of the premises the plaintiff has been deprived of
the comfort, society, aid and assistance which she otherwise
would have had from the said A. Scott Bledsoe, and has
suffered great distress of body and mind, to her damage in
the sum of $ 20,000. Wherefore, plaintiff prays," etc.
To this
petition the defendant filed an answer containing, first, a
general denial, and, second, the following facts:
"That
on or about March 7, 1898, A. Scott Bledsoe, the former
husband of said plaintiff, commenced an action against Laura
J. Bledsoe, the above-named plaintiff, in the circuit court
in and for Davison county, in the state of South Dakota, a
court of competent jurisdiction, wherein said A. Scott
Bledsoe, as plaintiff, prayed for a divorce from said Laura
J. Bledsoe, as defendant in said action, and plaintiff
herein; that said Laura J. Bledsoe, as defendant in said
action wherein A. Scott Bledsoe was plaintiff, employed
counsel and on or about April 30, 1898, filed an amended
answer in said action against her praying for a divorce on
her part from said A. Scott Bledsoe, plaintiff in said
action; that said action was duly tried in said court in
Davison county, on May 28, 1898, and was by the court decided
in favor of said Laura J. Bledsoe, defendant in said action,
and a decree of divorce and a judgment for alimony was duly
and legally granted to said Laura J. Bledsoe on the day of
June, 1898, which judgment and decree is in words and figures
as follow:
"'This
action having been brought to trial by the court and a
decision therein having been rendered for the defendant and
filed, now on motion of Winsor & Mohr, the
defendant's counsel, it is adjudged that the marriage
between the plaintiff, A. Bledsoe, and the defendant, Laura
J. Bledsoe, be dissolved, and the same is hereby dissolved
accordingly, and the said parties are and each of them is
freed from the obligations thereof.
"'And
it is further adjudged that the charge, control and custody
of Nellie Bledsoe, aged eight years, and the only issue of
said marriage, is hereby awarded to the defendant, Laura J.
Bledsoe, and that the plaintiff, A. Bledsoe, pay into the
hands of the clerk of this court, on the first day of July,
1898, and on the first day of each and every month
thereafter, up to and including the first day of January,
1911, when she shall become of age, the sum of twenty-five
dollars for the support, maintenance and education of the
said Nellie Bledsoe, and for the support of the defendant,
her mother, and that such sums be promptly transmitted by the
clerk to the defendant at her post-office address at Emporia,
Kan., by post-office money order or draft from bank of this
city on a responsible bank in Chicago, Ill.
"'And
it is further adjudged that it shall be lawful for the
defendant, Laura J. Bledsoe, to marry again in the same
manner as if the plaintiff, A. Bledsoe, were actually dead,
but that it shall not be lawful for the plaintiff, A.
Bledsoe, to marry again until the defendant, Laura J.
Bledsoe, is actually dead.
"'Adjudged
that the defendant recover of the plaintiff dollars and
cents, her costs in this action, to be taxed by the clerk.
"'Done
in open court at the city of Mitchell, this day of June,
1898'
"That
said proceedings, decree and judgment have not been reversed
nor appealed from and are in full force and effect, and have
at all times been recognized as valid and binding by said
Laura J. Bledsoe, defendant in said action and plaintiff
herein, as is shown by the fact that on July 16, 1904, the
plaintiff herein commenced an action, No. 22,857, in this
court to enforce the collection of the judgment for alimony
rendered in her favor against said A. Scott Bledsoe in said
divorce proceedings, which action is still pending and
undetermined in this court, and to which reference is hereby
made."
As a
third defense the defendant pleaded the two-year statute of
limitation.
To this
answer the plaintiff filed a reply, which reads:
"Comes
now said plaintiff and for her reply to the answer of
defendant herein said plaintiff says that the decree of
divorce referred to and set out in said answer is the same
decree of divorce referred to and alleged to be void in the
amended petition of the plaintiff herein, and in the petition
of this plaintiff against A. Scott Bledsoe and this...
