Hamman v. Van Wagenen

• Decision Date: 06 April 1895
• Citation: 94 Iowa 399,62 N.W. 795
• Parties: HAMMAN v. VAN WAGENEN, JUDGE.
• Court: Iowa Supreme Court

94 Iowa 399

62 N.W. 795

HAMMAN

v.VAN WAGENEN, JUDGE.

Supreme Court of Iowa.

April 6, 1895.

Certiorari to the defendant, as judge of the district court in and for the Fourth judicial district. The defendant was the presiding judge at the March term of the district court in and for Monona county in the year 1894, at which term there was pending an action for divorce of Maria Hamman, plaintiff herein, against Henry Hamman; and during said term, and on the 26th of March, a decree was entered in said case, awarding to the plaintiff a divorce, and making such a disposition of the property found to have been accumulated by both of the parties that the defendant therein was awarded the N. E. 1/4 of the S. W. 1/4 of section 1 of township 85, range 43, and a roadway out and over the N. W. 1/4 of the S. W. 1/4 of said section 1, and requiring the defendant to pay $250 of incumbrance thereon. The decree further gave to the plaintiff the care and custody of the minor children. The March term of the court adjourned, finally, on the 28th day of March, 1894. During the vacation following said term, and on the 28th day of April, 1894, the clerk of said court so changed the decree entered at the term as to give to the defendant therein the N. W. 1/4 of said S. W. 1/4 of section 1, with an incumbrance thereon of $300, and a right of way over the same to plaintiff. The basis of this action on the part of the clerk is a letter from the defendant herein, as follows: “Cherokee, Iowa, April 5, 1894. Messrs. McMillan & Kindall: Yours at hand, and you may have the clerk make the change that you suggest; that is, to give the defendant the west 40 acres and three hundred dollars incumbrance, and give the others the roadway and the balance of the incumbrance. This will be the clerk's authority to make the change. I have some doubts about the authority to make the change in vacation, but I thought I would let it be tried. An appeal would only bring the thing back for a correction of the decree, and that would give an opportunity to make a like order anyway. Yours truly, A. Van Wagenen.” This change in the decree was made without notice to plaintiff, and this proceeding is to set it aside, and cancel the change or modification to the decree as made April 6, 1894, as having been entered without jurisdiction. Under orders from Mr. Justice Kinne, a writ issued directed to the defendant, to which he has made a return.Charles Mackenzie and T. B. Lutz, for plaintiff.

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