Chapman v. Chapman
| Decision Date | 20 September 1905 |
| Docket Number | 13,894 |
| Citation | 104 N.W. 880,74 Neb. 388 |
| Parties | HIRAM T. CHAPMAN v. FLORENCE E. CHAPMAN |
| Court | Nebraska Supreme Court |
ERROR to the district court for Cedar county: GUY T. GRAVES, JUDGE. Reversed.
REVERSED.
W. E Gantt and J. C. Robinson, for plaintiff in error.
Gurley & Woodrough, contra.
AMES C. LETTON and OLDHAM, CC., concur.
This is an action by a wife against her husband, not for a divorce from the bonds of matrimony nor from bed and board, but to obtain a decree for maintenance only, which she alleges that the defendant, being a man of large means and ability, has for a term of years failed to provide, he having utterly deserted her. The answer in effect admits the desertion and failure to support, but justifies by averring that some ten years previous to the beginning of this action the defendant, by the judgment of the district court for Cass county, in North Dakota, obtained a divorce from the bonds of matrimony with the plaintiff, in an action duly pending in said court, in which the plaintiff had entered her appearance, and in which she had been allowed by the court and paid by the defendant certain sums as "suit money" or alimony pendente lite. In her reply the plaintiff admits the beginning of the suit in the North Dakota court, but denies that she was ever served with process or ever appeared therein; denies that she was ever paid anything by way of temporary alimony in the action; denies the rendition of a decree of divorce in that action as alleged in the answer; and alleges that neither she nor the defendant has at any time been a resident of the state of North Dakota or of the county of Cass therein, and that the district court of that county never had jurisdiction of her person or of the subject matter of a suit of divorce between herself and her husband. In short, by these and other denials and averments the entire proceeding in the North Dakota court was put in issue as completely as could have been done by a general denial, except that it was admitted that there was some such proceeding or pretended proceeding by which the defendant sought to justify his desertion of the plaintiff and his failure to support her.
To maintain the issues on his part the defendant offered in evidence a copy of the judgment roll in the proceeding in the North Dakota court, which was objected to on the ground that it was not authenticated in the manner provided by law. The defect of which the plaintiff complains is the absence of a certificate by the presiding judge of the court that the attestation to the record by the clerk is "in due form" or "in due form of law," as is required by an act of congress and a statute of this state. Authorities that the absence of such certificate is a fatal defect are too numerous and too familiar to permit a contrary contention, which, indeed, counsel for plaintiff do not in this court attempt to make, but he does argue that the objection in the court below was so vague and general as to be ineffectual. The objection, as appears by the bill of exceptions, was in the following form: "That the same is not authenticated as required for the authentication of foreign records under the laws of this state or by act of congress in such cases made and provided." We think the language used was sufficiently definite to invite especial examination of the form and language of the certificate of authentication, which, if made, would have disclosed the defect, and that greater precision was not required. The trial court received the document in evidence, but as the objection goes to its competency we feel bound to ignore its presence in the record. We are thus excused from discussing the evidence offered to impeach the proceeding in the North Dakota court for fraud and want of jurisdiction, but may note in passing that it sufficed to satisfy the trial judge of the invalidity of the decree attacked.
The conclusion thus reached dispenses with a consideration of much of the briefs and arguments of counsel for plaintiff in error, but the foremost and principal of his remaining complaints is the assignment that there is no evidence that the plaintiff below is a person of good character and free from fault in her marital...
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