Emelle v. Spinner

• Citation: 126 P. 397,20 Wyo. 507
• Decision Date: 10 September 1912
• Docket Number: 683
• Parties: EMELLE v. SPINNER, AS ADMINISTRATOR
• Court: United States State Supreme Court of Wyoming

126 P. 397

20 Wyo. 507

EMELLE v. SPINNER, AS ADMINISTRATOR

No. 683

Supreme Court of Wyoming

September 10, 1912

ERROR to the District Court, Uinta County; HON. DAVID H. CRAIG Judge.

Karl Spinner, as administrator of the estate of Stephen P. Emelle deceased, having presented his final report and petition for distribution, one Sodonie Emelle, claiming to be the surviving widow of the deceased, filed objections and exceptions to the said final report and petition for distribution, alleging, among other things, that a decree of divorce which had been granted the deceased in his life time was void, and that certain real estate which had been conveyed by the deceased subsequent to said void decree was his homestead, and should be included in the assets of the estate. By the judgment the exceptions were overruled, and the final account was allowed and distribution directed in accordance with the petition of the administrator. Sodonie Emelle brought error. The other material facts are stated in the opinion.

Affirmed.

P. W Spaulding, for plaintiff in error.

Upon the agreed facts the decree of divorce was void, for the reason that the affidavit for service by publication was insufficient. (Comp. Stat. 1910, Sec. 4368; Cordray v. Cordray, 91 P. 781; Atkins v. Atkins, 9 Neb. 191, 2 N.W. 466; Carnes v. Mitchell, (Ia.) 48 N.W. 943; Long v. Fife, 45 Kan. 271, 25 P. 594, 23 Am. St. 724; Lobell v. Stock Oil Co., (Wyo.) 115 P. 69.) The divorce decree being void, the District Court should have found that plaintiff in error was the surviving widow of the deceased and that she was entitled to her share in the distribution of the estate as one of the heirs. Any deed or conveyance of the homestead by the husband subsequent to the void divorce decree, without the consent and acknowledgment of the wife, was void. (Comp. Stat. 1910, Sec. 3662; Jones v. Losekamp, (Wyo.) 114 P. 675; 98 S.W. 214; Jones v. Kepford, (Wyo.) 100 P. 925; Arnett v. Reade, U. S. S.Ct. Reporter, Adv. Sheets, May 1, 1911, 426.) This court in this proceeding may render such judgment as should have been rendered by the trial court. (Comp. Stat. 1910, Sec. 5125.)

The question as to the sufficiency of the service in the divorce case is not res judicata. (Bishop v. Smith, (Kan.) 72 P. 221; Felix v. Roseberger, 10 N. J. L. 79; 23 Cyc. 1089, note 79; 1 Van Vleet Former Adjudication, 97.)

Walter B. Dunton, for defendant in error.

The decree of divorce shows that the defendant in that suit was duly served with summons, and the jurisdictional fact thus appearing by the decree, it cannot be questioned in this collateral proceeding. (1 Bates Pl. & Pr. 617; Rice v. Tilton, 14 Wyo. 101.) Again, the laches of plaintiff in error bars her from questioning the decree at this time. The divorce decree did not depend alone upon the service obtained by the first affidavit, for the plaintiff in error appeared in that suit specially and moved to quash the service, and the court entered an order allowing the affidavit to be amended, and allowing the defendant time in which to answer or otherwise plead, and no answer or other pleading was filed. The statute provides a method for the vacation of a judgment for irregularity. (Comp. Stat., Sec. 4650.) That remedy must be pursued within three years after the rendition of the judgment. (Id., Sec. 4659.) And one of the conditions for opening the judgment in such case is that the complaining party had no actual notice of the suit in time to defend. The plaintiff in error had full notice of the proceedings, but waited five years before making any objection. The authorities cited by opposing counsel are not in point, for the judgments in the cases cited rested upon one affidavit alone, and the defendant acted in a reasonable time. The decision of the court upon the motion to quash service in the divorce suit was res judicata, the defendant in the suit not having appealed from the decision. (32 Cyc. 529; Williams v. Browning, 45 Mo. 475.) A defective affidavit for service by publication may be amended. (32 Cyc. 536; 1 Bates Pl. & Pr. 612.) The divorce having been lawfully granted, the plaintiff in error has no interest in the estate and no right to object to the final account, or the distribution of the estate of her deceased husband, or to have included in the assets of the estate land which was conveyed by her husband after the divorce and prior to his death. Having been divorced from her husband, plaintiff in error was not required to sign the deed. (Arp v. Jacobs, 3 Wyo. 590.) There is no showing that plaintiff in error at any time lived with the deceased on the land in question after 1904, but as a matter of fact, she was living in Idaho. If any presumption obtains upon the evidence, it is that plaintiff in error was living separate and apart from the deceased and had abandoned whatever rights of homestead she may once have had, and had lost all such rights, regardless of the question of divorce. (Ullman v. Abbott, 10 Wyo. 97.)

The acts of an administrator will not be disturbed except on affirmative evidence that he has erred. The burden of proof was upon plaintiff in error. While, if plaintiff in error has any interest in the land, she might question the conveyance thereof in an action against the grantees, she has no right to insist that the land be included in the assets of the estate after it has been conveyed to other parties.

SCOTT, JUSTICE. BEARD, C. J., and POTTER, J., concur.

OPINION

SCOTT, JUSTICE.

The defendant in error having administered upon the estate of Stephen P. Emelle, deceased, filed his final account, report and petition for distribution of the estate in the District Court of Uinta county. The plaintiff in error, by her attorney, filed objections and exceptions to the report and petition alleging as grounds therefor the following reasons:

"1. Objects to the allowance of said final account and report and petition for distribution because no notice of the filing thereof has been given as provided by law.

"2. Objects to the allowance of said final account and report and petition for distribution because said report and petition are untrue in this, that no mention is made therein of said Sodonie Emelle, who at the time of the death of said Stephen P. Emelle was the lawful wife of deceased and survived said deceased and is now living and is entitled to share in the distribution of the estate of said deceased under the laws of the State of Wyoming.

"3. Objects to the allowance of said final account and report and petition for distribution because no mention is made therein of the homestead of said deceased and of his said wife, being the east half of the northwest quarter and the west half of the northeast quarter of section eight in township twenty-five north, range one hundred eighteen west of the 6th principal meridian, in Uinta county, Wyoming, and conveyed to said deceased as his homestead by patent from the United States dated December 20, 1904."

The parties agreed upon the facts and the case was submitted to the court upon a statement thereof and the court found and gave judgment in favor of the administrator and directed payment of the balance in his hands to Margarete Emelle, daughter of deceased, and Sodonie Emelle brings error. It was agreed (1) That in the final account and petition for distribution no mention is made of Sodonie Emelle, but it is therein stated that Margarete Emelle is the daughter of said deceased and is sole heir to his estate; (2) That during and prior to 1904 deceased and said Sodonie Emelle were husband and wife and lived together as such; (3) That on December 21, 1904, deceased commenced suit against said Sodonie Emelle in the District Court of Uinta county for divorce; (4) That on April 8, 1905, said action for divorce came on for hearing on a special appearance and motion to quash the service of the summons which motion was denied and the plaintiff therein was given leave to file an amended affidavit for publication of notice; (5) That no further or other appearance was made by the said Sodonie Emelle in or to said action; (6) That on April 26, 1905, an amended affidavit for publication was made and filed, but without further publication and without any notice of the filing of the amended affidavit, the default of defendant was taken and a decree of divorce was entered; (7) That at the date of the decree of divorce the deceased owned the real estate above described and claimed by Sodonie as a homestead, and that subsequent to the entry of such decree the deceased conveyed the land for a consideration by a deed in which said Sodonie did not join, nor has she ever joined in or executed any deed or transfer of the same to any one. The value of the estate as shown by the appraisers' report was $ 375.50. The amount on hand for distribution as shown by the final report was $ 51.20. The debts had all been paid.

The failure if true in the exceptions to publish the notice of final settlement did not affect plaintiff's right, as she appeared without such notice.

It will be observed that by the exceptions to the report and petition for final distribution that the plaintiff in error, under the claim of being the surviving widow of deceased, sought to share in the distribution of the assets of the estate, and to include in such assets the alleged homestead. It was necessary for her to establish the fact that she was the surviving widow, in order to obtain the relief sought. Her contention brings up the question as to whether she was the surviving widow of deceased, and it is here argued that the decree of divorce was not voidable, but void for want of personal jurisdiction of the defendant in that case.

It is provided by paragraph 6 of Sec. 4366, Comp. Stat. 1910, that service by publication...