Conn v. Conn

• Decision Date: 01 October 1895
• Docket Number: 35
• Parties: WILLIAM CONN et al. v. MARY A. CONN
• Court: Kansas Court of Appeals

42 P. 1006

2 Kan.App. 419

WILLIAM CONN et al. v. MARY A. CONN

No. 35

Court of Appeals of Kansas, Northern Department, Central Division

October 1, 1895

Opinion Filed December 14, 1895.

MEMORANDUM.--Error from Cloud district court; F. W. STURGES judge. Action for partition, brought by Mary A. Conn against William Conn and others. Judgment for plaintiff. Defendants bring the case here. Affirmed. The opinion herein was filed December 14, 1895.

The statement of the case, as made by CLARK, J., is as follows:

The defendant in error, as plaintiff, brought this suit in the district court of Cloud county for the partition of certain real estate in which she claimed an interest as the widow of one Lorenzo D. Conn, deceased. The vital question presented by the pleadings was as to whether or not the plaintiff below was the lawful wife of the said Conn at the time of his death. The issues were tried by the court on October 6, 1890 and special findings of fact were made, together with conclusions of law thereon. The court found that on the 4th day of December, 1887, the plaintiff was married, in Cloud county, Kansas, to the said Lorenzo D. Conn, who was at that time a widower, and that immediately upon her marriage she went with him to reside upon the homestead of said Conn and his family, in said Cloud county, where the plaintiff and said Conn continued to live and reside as husband and wife until his death, which occurred on the 4th day of February 1888; that the deceased left no other heirs than the plaintiff and the defendants herein, the latter being his children by a former wife; that prior to the date of plaintiff's marriage with Conn she had been the wife of one George P. Curtis; that on the 22d day of August, 1887, she filed in the Cloud county district court her petition for a divorce from said Curtis, alleging as grounds therefor abandonment for more than a year; that the petition was on that day verified, which verification also contained an allegation of defendant's non-residence, and that thereafter, on the 26th day of August, 1887, she caused notice of the pendency of the suit to be published, and such publication continued in a newspaper printed and published and of general circulation in Cloud county for more than three weeks, and that said notice specified that the defendant was required to answer on or before October 10 thereafter; that at the regular October term, 1887, of said court, and on the 18th day of November of that year, said cause came on regularly to be heard, the plaintiff appearing in person and by attorney, defendant not appearing; and upon the hearing had the court found, among other things, that the defendant, George P. Curtis, had been duly and legally notified of the institution and pendency of the suit; that he had wilfully abandoned the plaintiff for more than one year prior to the bringing of the suit, and that plaintiff was entitled to a divorce from him, and decreed the same; that there is not among the files and papers of the case any affidavit that the residence of the said George P. Curtis was unknown to the plaintiff, and could not be ascertained by any means within her control; that the record does not show, nor was any evidence offered tending to show, that any such affidavit was ever made and filed; that there is among the papers of the case an envelope on which postage is paid, and inclosed in which there is a copy of the petition and of the notice of publication, which envelope is addressed in the handwriting of the then attorney of plaintiff, to the defendant George P. Curtis, and bears the return stamp of the post-office at Clay Centre; that there was no notice of an intention to prosecute proceedings in error to the supreme court to reverse the judgment and decree of the district court given in open court and noted on the journal thereof within three days after the entry of said decree, nor was such notice ever given, nor was any petition in error and transcript of the proceedings in the case filed in the supreme court within three months after the rendition of said decree, nor has any such ever been filed in said case, nor have any proceedings ever been had, commenced, or attempted, to reverse, open up or set aside said decree, and that the period of six months from the rendition of the judgment or decree had not expired at the date of her marriage to the said Conn.

The conclusions of law as drawn from these facts so found by the court were, that as the divorce was granted upon service by publication duly had, upon affidavit therefor duly made and filed, together with service by sending a copy of the petition and publication notice at the time and in the manner required by law, as is presumed from the finding of the court that the defendant had been legally notified of the institution and pendency of the suit, and as no notice was given and entered on the journal of the court within three days from the entry of said decree of an intention to prosecute proceedings in error to the supreme court, the judgment and decree, after the expiration of said three days, became absolute and final, and the marriage of the plaintiff to Lorenzo D. Conn within 16 days from the rendition of the decree of divorce was legal, valid, and binding; and that as the divorce of the plaintiff from her former husband, George P. Curtis, and her marriage with Conn were valid and not void, and as the latter died intestate, leaving the plaintiff and defendants as his heirs and only heirs, the real estate was subject to partition between the plaintiff and defendants, the plaintiff being entitled to one-half thereof. The defendants moved for judgment in their favor upon the special findings of fact, which motion was overruled by the court, to which the defendants duly excepted. A motion for a new trial was also overruled, to which the defendants duly excepted, and judgment was entered decreeing partition of the real estate as prayed for in the petition. The defendants have brought the case to this court on a transcript of the record, and assign for error the overruling of their motion for judgment in their favor on the special findings of fact and their motion for a new trial, and allege that the court erred in its conclusions of law from the facts as found.

Decree affirmed.

Caldwell & Ellis, for plaintiffs in error.

J. W. Sheafor, and C. L. Botsford, for defendant in error.

CLARK J. All the Judges concurring.

OPINION

CLARK, J.:

The vital question presented to this court is as to whether or not the defendant in error was the lawful wife of Lorenzo D Conn at the time of his death. The first contention of plaintiffs in error is, that the court did not acquire jurisdiction over the defendant in the divorce suit, and that because of that fact the decree that was entered divorcing the plaintiff from George P. Curtis and the subsequent marriage of the plaintiff herein to the said Lorenzo D. Conn were absolute nullities. The findings of fact, however, do not support this contention of the plaintiffs in error. The fact that the court found that neither the files and papers of the case nor the records of the court nor the evidence upon the trial show that an affidavit was made and filed that the residence of Curtis was unknown to the plaintiff, and could not be ascertained by any means within her control, raises the presumption that such affidavit was not made and filed; but this presumption, and the finding of fact concerning the envelope addressed to George P. Curtis and its contents, throw no light upon the question presented. These findings do not affirmatively establish the fact that a copy of the petition, with a copy of the publication notice attached thereto, was not within three days after the first publication was made inclosed in an envelope addressed to the defendant at his place of residence, postage paid, and deposited in the nearest post-office, as required by the statute to complete the service by publication, in the absence of the making and filing of an affidavit that such residence is unknown to the plaintiff, and cannot be ascertained by any means within her...