Hobson v. Dempsey Const. Co.

• Decision Date: 16 February 1943
• Docket Number: 46218.
• Citation: 7 N.W.2d 896,232 Iowa 1226
• Parties: HOBSON v. DEMPSEY CONST. CO. et al. (HOBSON, Intervenor).
• Court: Iowa Supreme Court

7 N.W.2d 896

232 Iowa 1226

HOBSON v. DEMPSEY CONST. CO. et al. (HOBSON, Intervenor).

No. 46218.

Supreme Court of Iowa

February 16, 1943

Healey & Reynolds, of Creston, for appellant Mellie Hobson.

Geo F. Allen and Thos. E. Mullin, both of Creston, for appellee Ruth E. Hobson.

Gamble Read, Howland & Rosenfield, of Des Moines, for appellees Dempsey Const. Co. and Standard Accident Ins. Co.

OLIVER Justice.

Frank A Hobson and Ruth E. Hobson were married in 1938, and lived together as husband and wife until May 8, 1941, when the husband was killed in an accident arising out of and in the course of his employment. July 24, 1941, Ruth Hobson filed with the Industrial Commissioner application for arbitration against the employer and its insurance carrier.

Appellant Mellie Hobson, was Frank Hobson's mother. She intervened in said proceedings alleging Ruth Hobson was not Frank's surviving spouse and praying that the workmen's compensation be awarded to appellant. The employer admitted the death was compensable and the only issue upon appeal is between appellant and Ruth Hobson. For convenience the latter will be referred to as appellee.

Appellant pleaded that appellee had married one Thomas Miller and, in 1935, had commenced divorce proceedings against him in Ohio, but that no decree of divorce was entered until June 10, 1941, when there was a nunc pro tunc entry and that by reason of said circumstances appellee and decedent were never legally married.

The material facts are not in dispute. In 1935, appellee, who had been domiciled in Ohio for some years, instituted in the Court of Common Pleas of Knox County, Ohio, an action for divorce from Thomas Miller. He was personally served with summons in Ohio, March 15, 1935. May 9, 1935, said cause was heard and the trial judge made the following entry in the Civil Docket,

"Orders of Court

"May 9, 1935, Plaintiff decreed divorce from the defendant for gross neglect of duty of defendant. * * *"

This entry was not journalized at said time. On June 10, 1941, a nunc pro tunc entry for divorce was signed by the judge and filed and recorded, stating in part:

"It appearing to the court that heretofore, on the 9th day of May, 1935, a decree of divorce was entered herein, * * *.

"And it appearing to the court that said order was duly made by this court on said date, at the April term, 1935, but that the same was through inadvertence not entered at said time, the court now orders that the following order and decree be entered by the clerk of this court upon the journal of this court as of the date of May 9th, 1935, and April term of said court * * *."

After reciting jurisdictional fact findings of the appearance of plaintiff, the default of defendant upon due service, and the bona fide residence of plaintiff in said county for one year, the decree recites a finding that, upon the evidence adduced, plaintiff is entitled to a divorce, and orders and adjudges the divorce.

I. This is a collateral attack upon appellee's decree of divorce from Miller. The decree is regular upon its face. There is no charge that it was procured by fraud. To avoid it appellant must show it was void for want of jurisdiction of the Ohio court to grant it.

In Richardson v. King, 157 Iowa 287, 135 N.W. 640, 645, heirs of a decedent brought suit against his widow to set aside her decree of divorce from a former husband and to bar her from sharing in decedent's estate. The court stated this was a collateral attack upon the divorce decree; that plaintiffs were neither parties nor privies thereto and claimed nothing through either of the parties to the divorce proceedings, "They are seeking to avoid a decree of divorce in order to make the marriage of their deceased father unlawful, and thus deprive the defendant, to whom their father was married, of any share of his estate. In order to do this, they must show that the divorce decree, which is fair on its face, was and is absolutely void because the court which granted it had no jurisdiction. * * * Courts very properly manifest great reluctance in setting aside decrees of the divorce after a second marriage has taken place, and will not do so save upon the most satisfactory showing. * * *"

See 27 C.J.S., Divorce, § 335, p. 1300; 17 A.J. 390, 558.

II. Article IV, Section 1 of the Constitution of the United States, provides, in part: "Full Faith and Credit shall be given in each State to the * * * Judicial Proceedings of every other State. * * *"

The Act of Congress of May 26, 1790, c. 11, 28 U.S.C. § 687, 28 U.S.C.A.§ 687, provides that judgments "shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken."

A judgment or decree of divorce of a state court has the same credit, validity, and effect in every other court in the United States which it has in the state where it was pronounced, and whatever pleas would be good to a suit thereon in such state, and none others, may be pleaded in any other court in the United States. The Federal Constitution and statute require that not some but full faith and credit be given judgments of a state court. Williams et al. v. State of North Carolina, 63 S.Ct. 207, 87 L.Ed. --. That decision overrules Haddock v. Haddock 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann.Cas. 1, which held the full faith and credit clause did not apply to a default decree of divorce entered in a state other than that of the matrimonial domicile, where no personal jurisdiction had been acquired over the defendant therein. But even when the rule of the Haddock case was the law, it was the holding in Iowa that although the full faith and credit clause did not compel the courts of this state to recognize the validity thereof, such decree, as a matter of reciprocal comity between the states, would be recognized as valid, in the absence of fraud in obtaining it. Miller v. Miller, 200 Iowa 1193, 206 N.W. 262; Freet v. Holdorf, 205 Iowa 1081, 216 N.W. 619.

The validity and effective date of appellee's divorce decree are governed by the law of Ohio.

III. Amazon Rubber Co. v. Morewood Realty Holding Co., 109 Ohio St. 291, 142 N.E. 363, holds a judgment may become effective between the parties before it is spread upon the journal.

Wells v. Cermak, 6 Cir., 82 F.2d 971, 973, states: "Under Ohio law all judgments and orders must be entered upon the journal of the court and specify clearly the relief granted (section 11604, G.C.). Such entry may be compelled. Smith v. Smith, 103 Ohio St. 391, 395, 133 N.E. 792. This does not mean, however, that until journal entry is made there is not for any purpose a judgment. 'Although a judgment which has been spread upon the journal is complete, judgments are good before the complete record is made. Its entry on the journal by the clerk is not an essential element of the rendition of the judgment; the entry on the journal it is declared, merely evidences the judgment.' 23 Ohio Jur. 615. As is said in Freeman on Judgments, § 38, 'A judgment is not what is entered but what was directed by the court, or it may be neglected altogether. * * * In the very nature of things, the act must be perfect before its history can be so; and the imperfection or neglect of its history fails to modify or obliterate the act."'

Nauman v. Nauman, 26 Ohio Cir. Ct. R. 37, holds a decree of divorce becomes operative between the parties at its rendition, although merely noted on the appearance docket.

The nunc pro tunc entry for divorce did not change, modify or correct a judgment but merely made the record speak the truth by recording the judicial action previously and actually taken. Ohio courts, in common with courts of other jurisdictions, recognize their inherent common-law power to make entries nunc pro tunc to record judicial action previously and actually taken. This power is not dependent for its existence upon any statute and is not limited by Ohio statutes relating to proceedings to vacate or modify judgments. Although the Ohio trial court has no power to alter its conclusion subsequent to the term of the original entry, there is no limitation of time for nunc pro tunc entries to record judicial action actually taken. Certain nunc pro tunc entries may be made upon the court's own motion. Nat. Life Ins. Co. v. Kohn, 133 Ohio St. 111, 11 N.E.2d 1020; Herman v. Ohio Finance Co., 66 Ohio App. 164, 32 N.E.2d 28; Helle v. Public Utilities Commission, 118 Ohio St. 434, 161 N.E. 282; Heacock v. Byers, 120 Ohio St. 621, 169 N.E. 295; Tresemer v. Gugle, Ohio App., 42 N.E.2d 712.

Smith v. Smith, 103 Ohio St. 391, 133 N.E. 792, holds that the entry upon the journal of a divorce decree which has been announced by the trial court may be compelled, and states that, in furtherance of justice, an order nunc pro tunc may always be entered. Most authorities hold that, in such cases, a nunc pro tunc entry as of the date of the former judgment is sufficient to dissolve the marriage relation as of said former date. Zahorka v. Geith, 129 Wis. 498, 109 N.W. 552; Tikalsky v. Tikalsky, 166 Minn. 468, 208 N.W. 180; In re Cook, 77 Cal. 220, 17 P. 923, 19 P. 431, 1 L.R.A. 567, 11 Am.St.Rep. 267; Id., 83 Cal. 415, 23 P. 392; Cameron v. Cameron, 105 W.Va. 621, 143 S.E. 349; Smith v. Smith, 27 Ohio Dec. 508; Rush v. Rush, 97 Tenn. 279, 37 S.W. 13; Newton v. Newton, 166 Mich. 421, 132 N.W. 91; 27 C.J.S., Divorce, § 163, p. 797; 17 A.J. 358.

Appellant complains that the nunc pro tunc entry was made without notice. In this case the record, without extraneous proof, showed beyond question the judicial decision and docket order "plaintiff decreed divorce" and that the failure to enter the decree was due to inadvertence.

Under the...