Gaynor v. Gaynor, 48742

• Decision Date: 07 June 1955
• Docket Number: No. 48742,48742
• Parties: Edmund S. GAYNOR, Plaintiff-Appellee, v. Louise M. GAYNOR, Defendant-Appellant.
• Court: Iowa Supreme Court

Page 923

70 N.W.2d 923

246 Iowa 1039

Edmund S. GAYNOR, Plaintiff-Appellee, v. Louise M. GAYNOR, Defendant-Appellant.

No. 48742.

Supreme Court of Iowa.

June 7, 1955.

Stilwill, Brackney, Stilwill & Wilson, Sioux City, Owen Donley, Elk Point, S. D., for appellant.

A. C. Hatt, S. D. Crary, Sioux City, for appellee.

HAYS, Justice.

On March 26, 1954, after due and timely service of notice on the defendant, there being no appearance, a default and decree of divorce were granted plaintiff. April 30th, defendant moved to set aside and vacate same. After hearing the motion was overruled and defendant appeals.

Rule 236, R.C.P., 58 I.C.A., provides: 'On motion and for good cause shown * * *, the court may set aside a default or the judgment thereon, for mistake, inadvertence, surprise, excusable neglect or unavoidable casualty. * * *'

Defendant's motion alleged illness, such as to prevent her giving proper attention to the matter; also, that in reliance upon representations made to her by the plaintiff, which were made for the purpose of deceiving her and prompting her to take no immediate steps to defend, no appearance was entered by her in the case. These factors, the motion asserts, constitute mistake, inadvertence, surprise, excusable neglect or unavoidable casualty. At the hearing the claim of illness was in effect abandoned.

As to the alleged misrepresentation, the testimony of defendant and plaintiff is in sharp conflict.

Defendant testified in substance as follows: Prior to the service of the notice on March 5th, the parties had discussed a divorce and plaintiff had submitted to her a proposed property settlement, which she refused as inadequate. On the day the notice was served they again discussed the matter and she informed him that the case would be contested. March 22nd, at a chance meeting, the divorce was discussed. Plaintiff was informed that she was going to employ a Mr. Owen Donley, as attorney at Elk Point, to represent her. That plaintiff informed her that Mr. Hatt, his attorney was out of the city. That nothing would be done until his return and that he would notify her when that was. On March 27th, she called plaintiff to find out about the divorce action and was told that it had been granted the day before. When asked why she had not been notified, he replied 'I didn't want to'. She then asked him 'Well, what did you do about me?' His reply was 'I don't have to give you anything but you meet me Monday and I will have Mr. Hatt draw up papers and give you the Skyline Bar.'

Plaintiff testified that at the meeting on March 22nd, the divorce was but casually mentioned. He was told that Mr. Donley had been employed and he had said that Mr. Hatt was out of the city at that time. He denies that he told her nothing would be done and that he would notify her when he returned and the case would be heard. On March 27th, she called and asked about the divorce and was told 'she was a free woman'. She then asked him 'Well where do I come out, who am I, do I have my own name or some other name, or what do I get out of this deal?' He told her he did not have to give her anything but to meet him on Monday and he would give her the Skyline Bar. They met on Monday and the Skyline Bar and five vacant lots, across the street from it, were transferred to her. At that time he asked her 'what became of your lawyer, Mr. Donley, why wasn't he on the job?' She replied 'well I decided not to have anybody'. This last statement is denied by defendant.

While perhaps not material, the record shows that plaintiff and defendant were married in 1939 and divorced in 1942. The defendant married one LeRoy Aspleaf and was divorced from him in 1943. Plaintiff and defendant were again married in 194...