Franklin v. Bonner
| Decision Date | 09 March 1926 |
| Docket Number | 37447 |
| Parties | ETHEL MAY FRANKLIN, Petitioner, v. W. G. BONNER, Judge, et al., Defendants |
| Court | Iowa Supreme Court |
Certiorari to Polk District Court.--W. G. BONNER, Judge.
ORIGINAL proceeding in certiorari, to test the validity of an order made by respondent as to notice of hearing on a motion to modify a decree of divorce in certain particulars within the purview of Section 10481, Code of 1924. The material facts are stated in the opinion.--Writ discharged.
Writ Discharged.
Chester J. Eller, for petitioner.
No appearance for defendants.
DE GRAFF, C. J.
This is an original proceeding in certiorari, to test the jurisdiction of the respondent court to modify a decree of divorce with respect to the custody of children and the payment of alimony, as provided in said decree. The record before us discloses that, on October 29, 1921, a decree of divorce was entered in the district court of Iowa in and for Polk County, wherein the plaintiff Ethel May Franklin (petitioner herein) was granted an absolute divorce from the defendant John Franklin, Jr., and by the terms of said decree plaintiff was given the custody of the minor children, and judgment for alimony against the defendant was awarded for the support and maintenance of said children in the sum of $ 80 per month, due and payable each month from and after the date of said decree, and until the youngest of the four children, then two years of age, attained the age of eighteen years, and subject to the further provision that said monthly alimony should be reduced by $ 15 per month as each of said children attained the age of eighteen years.
On the 24th day of October, 1925, a motion was filed in said cause by the defendant therein, to modify the said decree of divorce with respect to the matters heretofore mentioned. With the statements and allegations as contained in said motion, we are not concerned.
Upon the filing of said motion, an order was entered, fixing the time of hearing October 31, 1925, at 10 o'clock in the forenoon of said day, and providing that five days' notice of such hearing be given the plaintiff. In response thereto, the plaintiff, for the sole and exclusive purpose of questioning the jurisdiction of the court to hear and determine the matter in said manner, entered her special appearance, and therein and thereby challenged the jurisdiction of the said court "to modify a decree after one year from the date of entry thereof, unless a petition is filed at a regular term of court and notice served for said term of court, as provided with respect to the commencement of any action." The court overruled the matter raised by the special appearance, and ordered the cause to proceed on said motion. This ruling is the provocation for the suing out of the instant writ of certiorari.
Courts constitute the agency by which judicial authority is made operative. The element of sovereignty known as judicial is vested, under our system of government, in an independent department, and the power of a court and the various subjects over which each court shall have jurisdiction are prescribed by law. We are dealing here with a question of jurisdiction which may be defined as the power conferred upon a court to take cognizance of and to decide cases in law, equity, or special proceedings, and to carry its judgments and decrees into execution.
In brief, jurisdiction is the lawful exercise of judicial authority, and involves two elements: (1) the subject-matter of the action or proceeding, and (2) the parties thereto. Jurisdiction of the subject-matter is given to a court solely by the law. Consent cannot confer the right. Jurisdiction over the person is acquired by the service of process upon the defendant, as defined by law, or by his voluntary submission to the jurisdiction of the court. The object of process is to give a person notice that an action or proceeding has been commenced against him, and to afford him opportunity to contest the claim of the adverse party.
With these elementary propositions in mind, we turn to the challenge made by the petitioner to the jurisdiction of the court in the instant matter. It is obvious that a legal and timely notice is required. Hamman v. Van Wagenen, 94 Iowa 399, 62 N.W. 795. It is also obvious that the jurisdiction of the respondent is found in the provisions of Section 10481, Code of 1924. This section reads:
The salient words in the last sentence are "in these respects."
It is generally held that a court of chancery may expressly reserve control of a case of which it has jurisdiction, and keep it open for further relief or proceeding before final decree is entered. Lindquist v. Lindquist, 148 Iowa 259, 126 N.W. 1109. But independently of this principle of equity jurisprudence, the quoted statute gives the court power, in certain particulars, to modify the original decree of divorce at a subsequent term of court. There can be no question that a decree rendered in a divorce case is a finality as to all matters which were at issue or which it was the duty of either party to present before the case went to final decree. Kwentsky v. Sirovy, 142 Iowa 385, 121 N.W. 27.
The statute, however, contemplates that subsequent changes may be warranted, and the authority is expressly conferred on the court to make subsequent...
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