Faris v. Hope
Decision Date | 28 April 1924 |
Docket Number | 6431. |
Citation | 298 F. 727 |
Parties | FARIS v. HOPE. |
Court | U.S. Court of Appeals — Eighth Circuit |
Allen May, of St. Louis, Mo. (W. R. Littell, of Tarkio, Mo., and Hazlett, Jack & Laughlin, of Beatrice, Neb., on the brief) for plaintiff in error.
Ellis G. Cook, of Maryville, Mo. (McCaffrey & Cook and O. L. Curl all of Maryville, Mo., on the brief), for defendant in error.
Before LEWIS, Circuit Judge, and BOOTH and SYMES, District Judges.
This is an action of libel and defendant in error, plaintiff below recovered damages, both actual and punitive. Defendant below has brought the case here. The libelous character of the publication is not questioned. The principal contention of plaintiff in error is that there was no liability, that is, that there was no cause of action because of the marital relation of the parties at the time the husband is alleged to have committed the tort against the wife. They were married in May, 1918, and while both were domiciled in Nebraska the wife brought suit and obtained a decree of divorce on September 16, 1920, from which the husband appealed. This decree was affirmed by the Nebraska Supreme Court on November 26, 1921, but because of motion for rehearing the decree was not made final until February 1, 1922. The libel was in October, 1921, while the appeal was pending. The plaintiff established her residence in the Western District of Missouri, where she brought this action alleging diversity of citizenship. Barber v. Barber, 21 How. 582, 16 L.Ed. 226. Two questions are presented, first, When did the decree of divorce take effect and dissolve the bonds of matrimony? and, second, If not until after the publication of the libel, could the plaintiff bring and maintain the action? The answer to the first question must be found in the laws of Nebraska. Those laws, both statutory and as declared by its highest court, are within our judicial knowledge. Lemar v. Micou, 114 U.S. 219, 223, 5 Sup.Ct. 857, 29 L.Ed. 94; Hanley v. Donoghue, 116 U.S. 1, 6, 6 Sup.Ct. 242, 29 L.Ed. 535; Fourth National Bank v. Francklyn, 120 U.S. 747, 751, 7 Sup.Ct. 757, 30 L.Ed. 825; Vegaszki v. Coal Co., 225 F. 913, 141 C.C.A. 37.
Section 1606 of the Revised Statutes of Nebraska (1913), reads thus:
The subject treated was within legislative control and regulation. The meaning of the statute is clear and there can be no doubt of its purpose. In behalf of interested and innocent third parties and as a matter of public policy the statute gives the guilty party locus penitentiae in the hope of reconciliation, six months if there be no appeal, and if appeal until the proceedings on appeal are finally determined, pending which the decree does not become final or operative. During the times stated the marital relation continues, and that relation had not been dissolved when the alleged tort was committed. Goldenstein v. Goldenstein (Neb.) 195 N.W. 110; Sovereign Camp W.O.W. v. Billings, 107 Neb. 218, 185 N.W. 426; Everson v. Everson, 101 Neb. 705, 164 N.W. 717. In the Billings Case the husband held a certificate of life insurance. He died within six months after his wife obtained a decree of divorce, and the question presented to the court was whether his mother or his wife was entitled to the proceeds of the insurance certificate which had been paid into court in a controversy between them. It was conceded that if Mrs. Billings was his wife at the time of his death she was entitled to the proceeds, otherwise not. The court held that they had not been divorced, that the decree had not taken effect, and that the money should be paid t & he wife. It said:
It was the duty of the trial court and is the duty of this court to give to the divorce decree the same effect that it had and has in the jurisdiction where it was rendered. U.S. Comp States. Sec. 1519; Hampton v. McConnell, 3 Wheat. 234, 4 L.Ed. 378; Atherton v. Atherton, 181 U.S. 155, 21 Sup.Ct. 544, 45 L.Ed. 794; Haddock v. Haddock, 201 U.S. 562, 26 Sup.Ct. 525, 50 L.Ed. 867, 5 Ann.Cas. 1; Insurance Co. v. Harris, 97 U.S. 331, 24 L.Ed. 959; Metcalf v. Watertown, 153 U.S. 671, 676, 14 Sup.Ct. 947, 38 L.Ed. 861; Glencove Granite Co. v. City Trust, Safe Deposit & Surety Co., 118 F. 386, 388, 55 C.C.A. 212. We think there can be no doubt that the decree did not take effect and dissolve the marriage relation until the divorce suit was finally disposed of on appeal in February,...
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