Carmony v. Carmony

• Decision Date: 20 November 1924
• Docket Number: 24024
• Citation: 200 N.W. 830,112 Neb. 651
• Parties: FRANK L. CARMONY, APPELLANT, v. MARTHA A. CARMONY, APPELLEE
• Court: Nebraska Supreme Court

200 N.W. 830

112 Neb. 651

FRANK L. CARMONY, APPELLANT, v. MARTHA A. CARMONY, APPELLEE

No. 24024

Supreme Court of Nebraska

November 20, 1924

APPEAL from the district court for Douglas county: L. B. DAY, JUDGE. Affirmed.

AFFIRMED.

A. L Sutton, Max Fromkin, and Albert S. Ritchie, for appellant.

A. H Murdock and Joseph Rapp, Jr., contra.

Heard before MORRISSEY, C. J., LETTON, ROSE, DEAN, DAY, GOOD and THOMPSON, JJ. GOOD, ROSE and DEAN, JJ., dissent.

OPINION

LETTON, J.

This action was begun by the filing of a petition for divorce by the plaintiff, Frank L. Carmony. His wife, Martha A. Carmony denied the allegations of the petition and filed a cross-petition praying for divorce on the ground of extreme cruelty. On October 24, 1922, a decree was rendered finding against the plaintiff and granting a divorce to the defendant. On March 14, 1923, at the next term of court, the attorney for the wife produced to the court a certificate of marriage reciting that Frank L. Carmony had intermarried with another woman in Council Bluffs, Iowa, on March 3, 1923. The statutory six months period not having elapsed since the rendition of the decree, the court vacated and set aside the decree entered October 24, 1922. At another and later term of court, an application was filed by Frank L. Carmony asking to set aside the order of March 14, 1923, and to reinstate the decree of divorce as of that date. The application recites that before March 14, 1923, the plaintiff remarried, believing that he had lawfully entered into a marriage contract; that he continued to live with his second wife under such marriage relation, and that shortly afterwards she became pregnant, and is now in that condition; that he married without any intent to violate the laws of Nebraska and was under the impression that the statutory six months period had elapsed; that his present wife is an innocent party to this transaction, and unless the court reinstates the former decree the unborn child of plaintiff and his wife will be born out of wedlock. No notice was given of this application and no appearance was made by Mrs. Carmony. On October 27, 1923, the application was granted and an order made setting aside the order of March 14, 1923, and reinstating the decree of divorce as of that date.

On December 7, 1923, a special appearance was made by the defendant, Martha A. Carmony, "appearing specially," alleging that the court was without jurisdiction to make the latter order for the reason that the term at which the order was made adjourned sine die on May 5, 1923, and that no notice was given defendant of the application, and that the final order of March 14, 1923, is in full force and effect. After a hearing the court found that it was without jurisdiction to enter the order of October 27, 1923, and set aside the order made on that date reinstating the decree of divorce. Plaintiff appeals.

Within six months after the rendition of the decree, upon its being called to the attention of the court that the party against whom the divorce had been granted had remarried, the court set aside the decree of divorce. This it had full authority to...