Farr v. Farr

• Decision Date: 09 February 1921
• Docket Number: 33111.
• Citation: 181 N.W. 268,190 Iowa 1005
• Parties: W. L. FARR, Appellant, v. SARAH OLGA FARR, Appellee
• Court: Iowa Supreme Court

181 N.W. 268

190 Iowa 1005

W. L. FARR, Appellant, v. SARAH OLGA FARR, Appellee

No. 33111.

Supreme Court of Iowa, Des Moines

February 9, 1921

Appeal from Polk District Court.--GEORGE A. WILSON, Judge.

PLAINTIFF brought this suit in equity for a divorce, charging his wife with cruel and inhuman treatment. After the cause had been pending a year, he amended his petition by adding thereto a second count, asking that the marriage between the parties be annulled, on the ground that, at the time of such marriage the defendant was already married to one Johnson, who was still living, and from whom she had never been divorced. The defendant, answering, admitted her marriage to plaintiff and her former marriage to Johnson, but alleged she had been duly divorced from the latter, six years before she became the wife of the plaintiff. On trial to the court, the plaintiff's petition and the amendment thereto were both dismissed, and he appeals.

Affirmed.

B. J Cavanaugh, for appellant.

Parsons & Mills, for appellee.

WEAVER J. EVANS, C. J., PRESTON and DE GRAFF, JJ., concur.

OPINION

WEAVER, J.

The record presented by the abstract is very brief and fragmentary. Defendant pleaded and produced a certified decree of divorce from Johnson, rendered by the circuit court of Fulton, Illinois, at the May term thereof in the year 1900. It purports to have been rendered on service of summons by publication, and recites the failure of the defendant therein to appear or defend, the appearance by plaintiff in person and by counsel, the hearing by the court, the due publication of the summons, the willful desertion and abandonment of the plaintiff by the defendant for more than two years, without any fault on her part, and decrees that the plaintiff therein be thereby divorced from the defendant, and that the bonds of matrimony theretofore existing between the parties be dissolved, and the complainant be restored to all and singular the rights and privileges of an unmarried woman.

The testimony on which said decree was entered was preserved and certified with the record. It shows the marriage with Johnson in the year 1894; that, in 1896, he left plaintiff, on the professed mission of finding work; that, during the first six months of his absence, he wrote to his wife, but that, since that time, he has not written her or visited her or contributed to her support, and that, until the divorce was granted, four years later, plaintiff had made her home with her parents. Her marriage with plaintiff took place in 1906, ten years after Johnson's desertion, and six years after her divorce.

The trial below in the present case developed nothing whatever in support of the charge of cruel and inhuman treatment. Indeed, the allegations of the petition in that respect are wholly frivolous, and do not state a cause of action. In this court, appellant relies wholly upon his alleged right to have the marriage annulled on the ground that defendant had a living husband. It is conceded by appellant that the decree of divorce from Johnson is found in the records of the Illinois court, but it is alleged to be void and of no legal force or effect because of certain defects in the notice or summons by which the proceeding was instituted, and that, because of such defects, said court never acquired any jurisdiction to entertain such proceedings, or to render judgment or decree therein. In support of this contention, appellant introduced the depositions of two members of the Illinois bar, who express the opinion, as legal experts, that the circuit court of Illinois never had or obtained jurisdiction of the defendant Johnson in that proceeding, to authorize it to enter a valid decree of divorce against him. The opinion so expressed by these witnesses is based upon the proposition that certain alleged defects are found in the record, with reference to the service of the notice or summons by publication. Whether these objections are all well taken, or render invalid the decree entered by the circuit court, we think it unnecessary to decide. For the purposes of this appeal, it may be admitted, though not decided, that the service was ineffective to subject Johnson to a valid decree of divorce; but it does not by any means follow of necessity that appellant has shown himself entitled to the relief for which he prays. That court did have jurisdiction of the subject-matter and of the wife, who instituted the proceeding; and, while it was open to the defendant therein to ignore the decree entered without jurisdiction, or to go into court and by direct action have it set aside, it was also legally possible for him, by laches, neglect, or long acquiescence, to estop himself from the exercise of that right. Of the numerous cases so holding, see Hurley v. Hurley, 117 Iowa 621, 91 N.W. 895; Sedlak v. Sedlak, 14 Ore. 540 (13 P. 452); Nicholson v. Nicholson, 113 Ind. 131 (15 N.E. 223); Earle v. Earle, 91 Ind. 27, 39.

If the rule be sound (and we so regard it), and the party against whom a decree has been entered without jurisdiction may, by his own conduct, be held barred to impeach such decree in direct proceedings for that purpose, it would seem to follow of necessity that such impeachment cannot be accomplished by a stranger or third person in a collateral proceeding. But even if this point should be ruled against the appellee, the appellant has still far to go to establish the truth of his charge that the woman whose status as his wife he now denies was the wife of a living, undivorced husband when he married her. He admits that a formal ceremonial marriage was solemnized between himself and appellee in 1906, and that they lived together in the relation so assumed 11 years or more, until he began this action for a divorce. His act in bringing such suit was an admission that the woman was his wife, and the relief he now asks therein is essentially inconsistent with the idea that she was, in fact, the wife of another man. The validity of the marriage from which he now seeks to escape is supported by some of the strongest presumptions known to the law, presumptions which, in our judgment, he has signally failed to overcome. His belated change of front from the attitude of plaintiff in a divorce proceeding to that of petitioner for the annulment of an alleged void marriage increases rather than diminishes the difficulties which confront him. The fact of the ceremonial marriage being admitted, the law presumes it to have been a legal marriage, and that neither party thereto became guilty of the crime of bigamy; and, if it be further admitted that either the husband or wife had been previously married, it will be further presumed, in support of the legality of the second marriage, that the...