Ellis v. White

• Decision Date: 16 October 1883
• Citation: 61 Iowa 644,17 N.W. 28
• Parties: ELLIS v. WHITE AND OTHERS.
• Court: Iowa Supreme Court

61 Iowa 644

17 N.W. 28

ELLIS

v.WHITE AND OTHERS.

Supreme Court of Iowa.

Filed October 16, 1883.

Appeal from Marion district court.

Action to partition certain lands, the plaintiff claiming a dower interest therein. There was a decree establishing plaintiff's right and title to an undivided one-third of the lands. The defendants appeal. The facts of the case are fully stated in the opinion of the court.Anderson & Kinkhead and A. B. Miller, for appellants.

Stone, Ayres & Co., for appellee.

BECK, J.

1. The plaintiff, in her petition, claims dower in the lands in question as the widow of William Ellis, to whom she was married in 1837, and who died in 1876. The defendants, in their answer, allege that in 1855 the plaintiff prosecuted against defendant a proceeding for a divorce and alimony in the district court of Marion county, and a decree of divorce was had therein, and alimony to the amount of $600 was allowed to plaintiff, and that subsequently Ellis conveyed the lands, which are situate in Marion county, to the grantor of the defendants by deed of warranty, who by a like deed conveyed the property to defendant. It is shown that the amount allowed as alimony was paid by Ellis to the attorney of plaintiff who prosecuted the action, and that she had full notice of all the proceedings and received the money allowed her. The defendants further allege that at the time of and prior to the proceedings Ellis lived in Marion county. The plaintiff, in reply, alleges that the divorce proceedings were prosecuted without her knowledge, and without process or notice served upon her, and that she never authorized the attorney appearing for her in the action to institute and prosecute it. She denies the receipt of any sum as alimony in the case. She pleads that the proceedings are void for want of jurisdiction of the court in which they were prosecuted.

2. The determination of the case rests upon the validity of the divorce proceedings. If the court had jurisdiction, the decree cuts off plaintiff's right of dower. Our attention need only be directed to the question of the validity of the decree divorcing plaintiff from her husband, William Ellis. Plaintiff testifies that she never gave the attorney who prosecuted the suit in her name, J. E. Neal, authority to appear for her; that she had no knowledge of the proceedings until within about a year prior to the commencement of the suit, and that she received no part of the sum collected as alimony. She admits having received one letter from Neal, but does not remember its contents; and at one time had an interview with him, or another person, in which she was advised to procure a divorce. On the other hand, Neal testifies that he did have authority from plaintiff by letter to prosecute the suit, and produced a receipt signed by her for $240, being the balance due her upon the decree allowing alimony, which was collected by Neal, and, as he says, paid to her. She does not deny or attempt to impeach this receipt further than her declaration in a depostion, taken before the receipt was offered in evidence, that she never received money from Neal, or others, as money collected upon the decree for alimony. Neal's testimony, with this corroboration, outweighs plaintiff's evidence, which falls far short of making...