Ferguson v. Ferguson

• Decision Date: 14 April 1900
• Citation: 82 N.W. 490,111 Iowa 158
• Parties: FERGUSON v. FERGUSON.
• Court: Iowa Supreme Court

111 Iowa 158

82 N.W. 490

FERGUSON

v.FERGUSON.

Supreme Court of Iowa.

April 14, 1900.

Appeal from district court, Jones county; William G. Thompson, Judge.

Action in equity to enlarge alimony granted plaintiff in original decree, and to establish the same as a lien upon certain land of defendant. There was a decree for the plaintiff establishing the lien as prayed. Defendant appeals. Reversed.J. S. Stacy, for appellant.

C. W. Kepler, for appellee.

SHERWIN, J.

The original action was a divorce proceeding brought by the plaintiff against the defendant in Jones county. On the 21st day of December, 1897, a decree was entered divorcing the plaintiff from the defendant, and giving her a general judgment for alimony and attorney's fees in the sum of $600. This action is supplemental to the original one. The petition herein was filed on the 22d day of October, 1898. The plaintiff prays that she be given $1,000 permanent alimony, and $200 for attorney's fees, and that the judgment therefor be established as a lien upon the defendant's land. The prayer for the modification of the original decree is based upon section 3180 of the Code, which is as follows: “When a divorce is decreed, the court may make such order in relation to the children, property, parties, and the maintenance of the parties, as shall be right. Subsequent changes may be made by it in these respects when circumstances render them expedient.” Upon the trial of the original case the defendant fully disclosed his property, both real and personal. It appeared from his testimony that he owned 80 acres of land in Davis county, Iowa, which was mortgaged for $1,250, and that that was all the land he did own. It is not contended that he made any misrepresentations as to the amount or value of his property. But the plaintiff does allege that, since the judgment for alimony was rendered against him, he has resorted to deceit and artifice to defeat its collection, and that he is claiming a homestead right in a part of this land. A general demurrer to the petition was interposed, which was overruled by the trial court. This demurrer should have been sustained. Section 3180 is substantially the same as section 2537 of the Revision. That section was construed and applied to a case precisely like the one at bar in all essential respects in Wilde v. Wilde, 36 Iowa, 319. In the above case the court followed Blythe v. Blythe, 25 Iowa, 266, where it is said: “Although the court granting a...