Henderson v. Henderson

• Court: North Dakota Supreme Court
• Writing for the Court: BURKE
• Citation: Henderson v. Henderson, 32 N. D. 520, 156 N. W. 245 (N.D. 1916)
• Decision Date: 10 January 1916
• Parties: HENDERSON v. HENDERSON.

32 N.D. 520

156 N.W. 245

HENDERSON

v.HENDERSON.

Supreme Court of North Dakota.

Jan. 10, 1916.

Syllabus by the Court.

Plaintiff, the wife, agreed with her husband that she should obtain a divorce in the mistaken belief that this was necessary to enable her to testify for her husband in a criminal action wherein he was charged with embezzlement. It was further agreed that after the termination of this action and other criminal proceedings that the husband should remarry her. In accordance with this agreement the wife deceived her attorneys and the trial judge and obtained a divorce. The husband, however, married another woman, and the wife secured from the same trial judge an order to show cause why the decree of divorce should not be set aside as collusive. The said order was served personally upon defendant outside of the state of North Dakota. Whether such service is sufficient to confer jurisdiction is not decided.

(1) A motion to quash the proceedings should have been allowed. Plaintiff's own testimony shows that she was not entitled to any relief. Having consented to the decree in order to aid her husband, she cannot question its validity by merely showing that the husband has failed to keep his agreement to remarry her, especially after the husband has married another woman.

Appeal from District Court, Stutsman County; Coffey, Judge.

Action by Marie Herzog Henderson against Frank W. Henderson. A decree of divorce was granted plaintiff, who later secured an order to show cause why the decree should not be set aside as collusive, and, the decree being set aside, defendant appeals. Reversed, and decree of divorce reinstated.Wolfe & Schneller, of Wahpeton, for appellant. M. A. Hildreth, of Fargo, for respondent.

BURKE, J.

Plaintiff and defendant intermarried at St. Paul, Minn., in 1909. In January, 1914, plaintiff, the wife, applied to attorneys at Jamestown, N. D., to prosecute proceedings against her husband for divorce. The defendant was personally served with the summons and complaint at Wahpeton, N. D., on January 16, 1914, although he was at that time a resident of Minnesota. He made no further appearance in the action, and upon March 4, 1914, the wife appeared before the district court with due proof and obtained a decree of divorce upon the grounds of cruel and inhuman treatment and adultery with various and divers persons unknown. The divorce allowed the wife alimony, suit money, and counsel fees, and also provided that either party might marry again after the expiration of three months. During the fourth month after the decree defendant, the husband, married again, whereupon the wife made application to the trial court for an order to show cause why the decree of divorce should not be set aside. As a basis for this order she filed her affidavit to the effect that prior to the institution of the divorce proceedings her husband had represented to her that he had been married before and had not secured a divorce, and that the former wife was making him trouble, and further represented to her that he had been arrested at Wahpeton, N. D., upon the charge of embezzlement, and that she, his wife, would not be allowed to testify upon his behalf, and that for those two reasons he had requested her to obtain a divorce from him so that he might avoid a possible charge of bigamy preferred by his first wife and in order that she (plaintiff) might testify as a witness upon the trial wherein he was charged with embezzlement. She further alleged that he (her husband) represented to her that, if she would secure the divorce and aid him in meeting the criminal charges aforesaid successfully, he would then remarry her, and that it was in reliance upon said promises, and not through any desire for a divorce, that the proceedings had been instituted wherein she had obtained the said divorce. She further alleged that pursuant to this agreement she had deceived her attorneys in Jamestown, N. D., as well as the trial court, and had represented to him that she desired such decree, when, in truth and in fact, she wished only to aid her husband in his trouble, that, notwithstanding the husband's promises to remarry her, he had married another woman, whom she has since learned and believes was an important witness for the state against her husband in the embezzlement case, and that the said marriage was undoubtedly brought about by her once husband in order to prevent the said witness from testifying against him upon such trial.

Upon the strength of this showing the trial court issued an order to show cause why the divorce should not be annulled, and the same was personally served upon the defendant within the state of Minnesota, of which he was a resident. Upon the return day defendant was represented by counsel, who, appearing especially, objected to the jurisdiction of the trial court over defendant's person, and moved to vacate and set aside the service of the citation and order to show cause, upon the grounds that no legal service had been made upon the defendant, who was a resident of the state of Minnesota and served therein. Upon this being overruled, the defendant, reserving all of the defendant's rights, objections, and exceptions to the jurisdiction of the court as aforesaid, moved the court to quash the order upon the grounds that the same was improvidently issued and that the facts shown therein were insufficient to warrant the court in granting the same. This was also denied, whereupon plaintiff offered herself as a witness, and the defendant objected to the taking of any proof upon all the grounds hereinbefore mentioned. This objection was overruled, and the plaintiff testified along the lines indicated by her affidavit. She was cross-examined by the defendant, who also introduced nine exhibits as evidence upon his own behalf. At the end of the testimony defendant moved to strike out all the testimony offered, and renewed his motion to quash. These motions were denied, and the trial court entered an order setting aside, vacating, and canceling the decree of divorce. Defendant has appealed, urging the same objections made to the trial court. There seems to be no statutory authorization for such a service, but in order to end this litigation we will base our decision upon the merits and assume for the purposes of this opinion that it was before the court.

1. The motion to quash should have been allowed....