Holmes v. Holmes
| Decision Date | 16 March 1920 |
| Docket Number | 33077 |
| Citation | 176 N.W. 691,189 Iowa 256 |
| Parties | FRANK A. HOLMES, Appellant, v. STELLA WINIFRED HOLMES, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED JULY 6, 1920.
Appeal from Fayette District Court.--W. J. SPRINGER, Judge.
ORIGINAL proceeding in equity for the vacation of a judgment and decree in a divorce action, and for a new trial. A demurrer to plaintiff's petition was sustained, and he appeals.
Affirmed.
Bailie & Edson and H. E. Tuller, for appellant.
E. H Estey, for appellee.
I.
It appears from the allegations of plaintiff's petition that he is and has been, at all of the times referred to in this action, a resident of Woodbury County, Iowa; that, on October 5, 1916, he and defendant were married, and lived together until December 1, 1916, and that, on December 25, 1916, she commenced an action against plaintiff in Fayette County for a divorce, upon the ground of cruel and inhuman treatment, such as to endanger her life, based upon the communication to her by plaintiff herein of a venereal disease, from which she became sick and suffered great physical and mental pain and anguish; that, on May 31, 1917, a decree granting the prayer of her petition was entered, which, on the 18th day of February, 1919, was affirmed by this court. As ground for setting aside said decree and for a new trial, plaintiff herein alleged in his petition that the same was obtained by fraud and perjury.
It is first alleged that defendant, plaintiff in the divorce action, was not, at the time of commencing same, a bona-fide resident of Fayette County, but that she was, in truth and in fact, a resident of Minneapolis, Minnesota, to which place she returned, shortly after the trial, and where she has continued to reside; that she went to Fayette County only for the purpose of obtaining a divorce; that she was, prior to her marriage, and has been, since her return to Minneapolis, engaged in teaching music; that defendant appeared in the divorce action, and filed an application for a change of venue to Woodbury County, where he resided, which was overruled; that he specifically denied in his answer that the plaintiff therein was a resident of Fayette County.
It is further alleged that defendant herein testified, upon the trial of said cause, that Drs. Emmons and Pattison made a physical examination, and informed her that she was afflicted with a venereal disease; that, since the trial of said cause, plaintiff has learned that said testimony was wholly false, and that both of said physicians advised her to the contrary. The petition further charges that defendant herein employed E. H. Farin in the capacity of a detective and agent, who, in turn, employed one O. W. Davis to assist him, to procure testimony on her behalf in the divorce action; that the said Farin and Davis procured one George M. Hecklin as a witness, who testified that he had seen plaintiff herein at a roadhouse near Sioux City, in company with women of questionable character; that Davis asked him for a prescription for the cure of a venereal disease, stating that he wanted it for a friend, meaning the petitioner, who later asked him for a copy of the same prescription, saying that he had lost the first one; that the said Hecklin further testified that he saw a Mrs. Davis going to the room of petitioner in a hotel in Sioux City; and that the said Hecklin and Davis procured one Edith Ludvickson, a woman of bad character, to falsely testify that, while working as a chambermaid in said hotel, she saw stains upon the bed linen used by plaintiff, indicating the presence of a filthy disease; that, since the decision of this court was filed in the divorce action, plaintiff has learned the matters above stated; that Hecklin has admitted that the matters testified to by him were wholly false and untrue; that said admission has been made orally, and in writing under oath, which plaintiff has in his possession; and that the said Hecklin is ready and willing, in case a new trial is granted, to testify that he committed perjury upon the former trial. To this petition, the defendant interposed what amounts to an equitable demurrer.
As already indicated, the jurisdictional question was made an issue in the trial of the divorce action, and the court specifically found that plaintiff was a bona-fide resident of Fayette County, and entitled to maintain her action there. The adjudication in that action is conclusive, except upon the ground of fraud. Williamson v. Williamson, 179 Iowa 489; Bingman v. Clark, 178 Iowa 1129, 159 N.W. 172; Scott v. Scott, 174 Iowa 740, 156 N.W. 834.
The only matters pleaded in plaintiff's petition tending to impeach defendant's claim that she was a resident of Fayette County in good faith is that she left there shortly after the trial, and resumed her former occupation in Minneapolis, where she has continued to reside. A finding by the court, upon a trial of the issues tendered herein, of the above facts, would not justify the setting aside of the decree and the granting of a new trial. Residence is largely a matter of intention. The statute does not require that the plaintiff in a divorce action reside in this state for any specified length of time, if the defendant is a resident thereof. She need only be a resident of the county in which the action is brought. The defendant had a legal right, in good faith, to change her place of residence, and the mere showing that she returned to Minneapolis, instead of going to some other city, is, in view of her former residence there, material only as tending to throw light upon her intentions at the time she claimed to have become a resident of Fayette County. The court passed upon the question of the good faith of her intentions in the divorce suit, and held that she was a bona-fide resident thereof. That she returned to Minneapolis and resumed her former position, shortly after the decree was entered, may tend, to some extent, to indicate that the purpose of her coming to Iowa was to obtain a divorce, but is wholly insufficient alone to justify the court in setting aside the judgment for want of jurisdiction to enter same, or upon the ground of fraud.
II. False swearing or perjury upon the original case is not such fraud as will alone justify the vacation of a judgment and the granting of a new trial upon a petition in equity, filed after the term at which judgment was entered. Graves v. Graves, 132 Iowa 199, 109 N.W. 707; Croghan v. Umplebaugh, 179 Iowa 1187, 162 N.W. 596; Sudbury v. Sudbury, 179 Iowa 1039, 162 N.W. 209; Kelly v. Cummens, 143 Iowa 148, 121 N.W. 540; Guth v. Bell, 153 Iowa 511, 133 N.W. 883; Mengel v. Mengel, 145 Iowa 737, 120 N.W. 72.
Nor will a court of equity interfere to set aside a judgment upon the application of a party thereto, until it is made reasonably to appear that the judgment is unconscionable, unjust, or inequitable, and that the result would be other or different than that already reached if a new trial were granted. Bingham v. Clark, supra.
The testimony given upon the former trial, which it is alleged was false and corruptly procured, is that of the plaintiff in said suit, Hecklin, Davis, and Edith Ludvickson. It is alleged that defendant committed perjury when she testified that Drs. Emmons and Pattison, after a physical examination advised her that she was afflicted with a venereal disease. So far as disclosed, neither of...
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