Comes v. Comes

• Decision Date: 06 July 1920
• Docket Number: No. 33468.,33468.
• Citation: 178 N.W. 403,190 Iowa 547
• Parties: COMES v. COMES.
• Court: Iowa Supreme Court

190 Iowa 547

178 N.W. 403

COMES

v.COMES.

No. 33468.

Supreme Court of Iowa.

July 6, 1920.

Appeal from District Court, Carroll County; M. E. Hutchison, Judge.

Appeal from an order setting aside a decree of divorce granted plaintiff on the application of defendant. Affirmed.Brown McCrary and John F. Urbany, both of Carroll, for appellant.

Lee & Robb, of Carroll, for appellee.

LADD, J.

A decree of divorce, in a suit begun by plaintiff, was entered October 15, 1919, and on January 23, 1920, was set aside on motion of defendant filed December 31, 1919. One of the errors assigned is that the motion was not filed during the term at which the decree was entered. Court convened in regular session October 13, 1919, and on the 31st “was declared at recess until further orders.” A like entry was made November 22d following, and on December 20, 1919, “court convened pursuant to recess, all officers being present when the following proceedings, among others, were had and done. * * * Court declared at recess until further orders.” Judge Albert presiding, had been assigned to hold the term, but the last entry was by Judge Hutchison presiding. See Section 241 of the Code.

[1] The times the several terms of court began are fixed by order (section 232, Code Supp. 1913), and, in the absence of an adjournment sine die sooner terminate when the next succeeding term begins. Jones v. McClaughry, 169 Iowa, 281, 151 N. W. 210. That decision is not affected by subsequent changes in section 232 of the Code, for these relate solely to the publication of the orders of the judges in the several districts, fixing the dates when and places where the several terms of court shall be held, and the judges who shall preside thereat. See 15 Corpus Juris, 876. As the succeeding term did not commence until January 5, 1920, the application to set aside the default was filed during the term in which it was entered.

[2] II. The defendant failed to appear or file any pleading. Default and decree was entered on the 3d day of the term, i. e., October 15, 1913, as authorized by section 3788 of the Code. Counsel for appellant contends, however, that this section is not applicable, for that the power to grant divorces is legislative, and that such power was delegated on conditions prescribed and none other, and that, as a legislative divorce was irrevocable that by the courts must be. Divorces were granted in England by Parliament, upon relinquishment of jurisdiction by the ecclesiastical courts, but the Legislature of this state never possessed such power, and therefore might not delegate it. Section 27, article 3, of the Constitution of Iowa. It was not prohibited, however, from conferring jurisdiction over the entire subject-matter of divorce and annulment of marriages, and this was done by enacting that--

“The district court in the county where either party resides has jurisdiction of the subject-matter of this chapter.”

Having jurisdiction of the subject-matter and the parties, irregularities in pleadings and procedure may not be challenged in a collateral attack on the decree. Richardson v. King, 157 Iowa, 287, 135 N. W. 640;Gelwicks v. Gelwicks, 160 Iowa, 675, 142 N. W. 409;Williamson v. Williamson, 179 Iowa, 489, 161 N. W. 482; McCraney v. McCraney, 5 Iowa, 232, 68 Am. Dec. 702; Ellis v. White, 61 Iowa, 644, 17 N. W. 28;Mengel v. Mengel, 145 Iowa, 737, 120 N. W. 72, 122 N. W. 899. In other words, these are not jurisdictional.

[3] The discussion in a general way, found in Mollring v. Mollring, 184 Iowa, 464, 167 N. W. 524, is to be approved, on the theory that a remedy prescribed in granting a right is to be construed as so connected with the grant that it must be pursued in enforcing the right; but this does not follow where jurisdiction over the subject-matter is conferred on condition specifically defined as in the section quoted. The residence of either party being in the county where the district court is sitting, jurisdiction of the subject-matter is acquired by notice. That residence is intended to be the sole jurisdictional fact is the more manifest from the requirement in section 3173 of the Code that--

“If the averments as to residence are not fully proved, the hearing shall proceed no further, and the action be dismissed by the court.”

Such has been the ruling of this court since McCraney v. McCraney, 5 Iowa, 232, 68 Am. Dec. 702, and there is no disposition to recede therefrom.

[4][5] The procedure prescribed in chapter 3, title 16, is that peculiar to causes for divorce, annulment, and alimony, and does not purport to obviate the general rules of procedure in so far as applicable prescribed in title 18. Provisions peculiar to the remedy sought are prescribed precisely as in chapters relating to other proceedings, as in mandamus, to obtain an injunction, for the recovery of real estate, and others. In other respects, the general provisions concerning procedure, as prescribed in the title on procedure, obtain, in so far as applicable. No authority to the contrary is cited, and surely the suggestion that divorce is a creature of the statute furnishes no reason for ignoring the procedure prescribed for the disposition of causes generally. That legislative divorces were irrevocable is not a reason for so construing those decreed by court under a procedure declaring judgments and decrees generally subject to correction and being set aside on appropriate showing. Gilruth v. Gilruth, 20 Iowa, 225;Tollefson v. Tollefson, 137 Iowa, 152, 114 N. W. 631. And In re Feldner, 167 Iowa, 150, 149 N. W. 38, ruled that section 3796 of the Code relating to actions in rem were not applicable to decrees in divorce cases, but this conclusion does not affect or limit the applicability of section 3790 of the Code, which seems to be inclusive of judgments entered on default. We are of opinion that the section relating to the entry of judgment by default, section 3788, as well as that providing for setting aside defaults, may be resorted to in suits for divorce.

[6] III. It is urged, however, that section 3790 of the Code authorizes setting aside the default, but not the judgment entered thereon, and also that only the judge presiding at the entry of the decree may, when presiding, set aside the default. That section provides that--

“Default may be set aside on such terms as to the court may seem just, among which must be that of pleading issuably and forthwith, but not unless an affidavit of merits is filed, and a reasonable excuse shown for having made such default, nor unless application therefor is made at the term in which default was entered, or if entered in vacation, then on the first day of the succeeding term.”

Though the application must be made during...