Gelwicks v. Gelwicks
| Decision Date | 03 July 1913 |
| Citation | 142 N.W. 409,160 Iowa 675 |
| Parties | GEORGE W. GELWICKS, Appellee, v. CELESTA D. GELWICKS, Appellant |
| Court | Iowa Supreme Court |
Appeal from Linn District Court; HON. MILO P. SMITH, Judge.
THE plaintiff filed a petition for divorce March 22, 1911 alleging that he had been a resident of Linn county for four years. An original notice was served on defendant in Barton county, Mo., and decree was entered as prayed April 12, 1911. The defendant filed a petition August 12th, following praying that the decree be set aside. This petition was dismissed, and the decree granting the divorce confirmed. The defendant appeals.
Affirmed.
James E. Bromwell, for appellant.
L. A Reiley, for appellee.
This is an appeal from an order denying the defendant's petition to set aside as void a decree granting the plaintiff a divorce. Such decree had been entered April 12, 1911, on the ground that the defendant had abandoned and deserted plaintiff more than four years previous, had ordered him to go, and refused to live with him or permit him to live on the premises with the family. Therein he alleged that he was and had been for four years a "resident of the state of Iowa having his home in the county of Linn." The petition praying that the decree be set aside alleges that he had been a resident of Barton county, Mo., continuously for many years, and was never a resident of Iowa and, further, that defendant had never deserted the plaintiff. On hearing the application to set the decree aside was denied, and therein appellant contends that the court erred for that (1) the original petition was insufficient in not averring the township of plaintiff's alleged residence in Linn county; (2) both parties were nonresidents of the state; and (3) fraud was practiced on the court in procuring the decree.
I. If fraud were practiced, it was in adducing false testimony, and as defendant had ample opportunity to meet that, it is held not to furnish ground for setting aside the decree. Graves v. Graves, 132 Iowa 199, 109 N.W. 707. See, also, Heathcote v. Haskins, 74 Iowa 566, 38 N.W. 417; Teabout v. Roper, 62 Iowa 603, 17 N.W. 906.
II. The application to vacate the decree appears to have been made under section 4091 of the Code. The section following declares that "the facts stated in the petition shall be considered as denied without answer, and tried by the court as other actions by ordinary proceedings." In Carpenter v. Brown, 50 Iowa 451, the court in holding the issues raised not triable to jury said the provision "that the case shall be tried as other cases, by ordinary proceedings, refers . . . to the mode of producing evidence as contradistinguished from the mode of sustaining and controverting the allegations by affidavit." And in Sitzer v. Fenzloff, 112 Iowa 491, 84 N.W. 514, it was said that: "An appeal from an order made under these provisions is not triable de novo; but on assignments of error, and, if there be any conflict in the evidence or in the inferences fairly deducible therefrom, the court will assume such a state of facts, reasonably consistent with the evidence, as will support the conclusion reached." This is in harmony with the view expressed in Mogelberg v. Clevinger, 93 Iowa 736, 61 N.W. 1092, Andres & Co. v. Schlueter, 140 Iowa 389, 118 N.W. 429, and Farmers Exchange Bank v. Trester, 145 Iowa 665, though in the last case the ruling is referred to as discretionary.
The evidence adduced was oral and in the form of affidavit, to which no objection was made. It appears therefrom that the parties were married in 1879, and in 1901 moved on a farm about four and one-half miles from Lamar, Mo.; that they had three children, all of whom are now grown; that the plaintiff continued on a farm about two and one-half years, and then was employed by the Missouri Immigration Association about four years, and has since been a canvasser for the sale of books published by the Clark Publishing Company, Chicago, Ill. The defendant testified that since he quit working on the farm he had been away much of the time, but visited "home more or less frequently;" that he had said to her he had "come home as often as he could;" that he had been there during Christmas time, 1910, and with his wife had Christmas dinner at the home of a son, and gave presents to his children and his wife; that they had never had any serious trouble. The evidence as to whether they had ever discussed parting was in conflict, the defendant saying that there had never been any such talk, while the plaintiff by affidavit asserted the allegations of his petition were true. He had been in correspondence with his wife as late as February, 1909, and in March, 1908, addressed the defendant as "dear wife." There was testimony that on April 19, 1910, the plaintiff registered at a hotel in Cedar Rapids as "George W. Gelwicks, Chicago, Ill.," and boarded there three months, and then went to Central City, thereafter returning to another hotel for a few days, and then went to Chicago, and that while at the hotel first mentioned he represented himself as a widower with a mule farm in Missouri and a chicken farm in Illinois in charge of a sweetheart. Affidavits of three men, each of whom had been residents of Barton county, Mo., for many years, that they were acquainted with the parties hereto, and had known them since they moved to that county, and that the farm on which Mrs. Gelricks resides has always been regarded as the home of the plaintiff to which he came more or less frequently during said time, and that the parties hereto never had any serious trouble, were adduced. On the other hand, affidavits of three persons residing at Lamar, Mo., who were personally acquainted with plaintiff, asserted that "to the best of their knowledge and belief" he had been in that place only twice in the past three years were introduced in evidence. The affidavit of plaintiff was that he held no personal knowledge of two of the affiants whose affidavits were introduced by defendant, and, quoting,
An affidavit of one Horn was introduced, in which he swore to an intimate acquaintance with plaintiff during the past twenty-five years, that his home is and had been in Barton county, Mo., and quoting: "I further state that said George W. Gelwicks has not been a resident of Barton county Mo., for more than three years last past; that he has had his home in Linn county, Iowa for the past two years, and that he has had his home in the state of Iowa for more than three years; that during that period he and Celestia D. Gelwicks have lived apart, and he has not claimed a home in Barton county, but has not...
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