In re Edwards

• Decision Date: 06 June 1882
• Citation: 10 N.W. 793,58 Iowa 431
• Parties: IN RE ESTATE OF EDWARDS
• Court: Iowa Supreme Court

10 N.W. 793

58 Iowa 431

IN RE ESTATE OF EDWARDS

Supreme Court of Iowa, Des Moines

June 6, 1882

Appeal from Howard Circuit Court.

MARY Y ARNDT filed a petition in said court in which it was stated "that prior to the death of said William Edwards, she was his legal wife, having been duly married to him some time prior thereto; that at the time of the death of said Edwards she was his wife, and after his decease his widow; that said Edwards died intestate, leaving petitioner as his widow entitled to one-half of his personal and real estate," and appropriate relief was asked. The administrator filed the following answer.

"That the pretended marriage of petitioner with deceased was duly declared null and void in the year of 1873, either by the District or Circuit Court of Howard county, Iowa (which Court administrator is unable to state, as the records have been destroyed by fire), but a decree was duly rendered therein annulling said marriage, and divorcing said decedent from petitioner before the death of said decedent.

"That at the time of the alleged marriage of petitioner to decedent, petitioner was married to another man.

"That after the annulling of the marriage as aforesaid, petitioner was married to one Baker, and lived with him as his wife after the death of said decedent, and claimed to be the wife of said Baker.

"That administrator denies that petitioner is the widow of decedent, and states that petitioner has often acknowledged the divorce."

Trial to the court. The relief asked was refused, and Mrs. Arndt appeals.

AFFIRMED.

Barker Bros., I. Frick and Brown & Wellington, for appellant.

H. Widner, Sayre, Stoneman, Breckenridge, and Reed & Marsh, for appellee.

OPINION

SEEVERS, J.

I.

Errors have been assigned and argued by counsel, and the evidence discussed as if this cause was triable de novo in this court. As counsel have not seen proper to give the action a name, we shall not do so, but consider it as triable both upon error and anew as is provided in equitable causes.

It is essential to a consideration of some of the errors discussed by counsel to settle what issues are presented in the pleadings. The petition alleges a marriage between Edwards and the appellant. This is not denied in the answer, and must, therefore, be regarded for all the purposes of the case as an admitted fact. Code, § 2712. Notwithstanding what has just been stated, appellant introduced, without objection, evidence tending to prove the marriage. Other evidence so tending was objected to as being immaterial, and the objection rightly, we think, was sustained. Under the issue presented by the pleadings, the burden was on the appellee, to avoid a recovery, to establish a divorce or the illegality of the marriage as alleged in the answer.

II. If there was a decree of divorce entered of record it was in 1873. There was evidence tending to show the records of the court, or a portion of them, previous to 1876 were destroyed by fire in that year. As tending to prove an action for divorce was commenced by Edwards as plaintiff and a decree therein ordered by the court, one Patterson and others were introduced as witnesses, and Patterson testified he, in 1873, was assistant to the then clerk; that he did not know anything about a decree of divorce, but he saw the judge's calendar and therein was a case of Wm. Edwards against appellant, and an entry of "default, judgment for plaintiff as prayed for in petition, upon payment of costs." This evidence was objected to, but the same was overruled. It is insisted the judge's calendar is not a record, and that the entries therein are merely memoranda of the judge, and therefore not admissible as tending to prove there was a decree. As supporting this proposition Traer Bros. v. Waitman et al., 56 Iowa 443, 9 N.W. 339, is cited. All that was held in that case applicable to the one at bar was, that the entry on the calendar was not the decree, but it was said such entry was "intended for the guidance of the clerk in entering orders and judgments." To the same effect is Smith v. Cumins & Co., 52 Iowa 143, 2 N.W. 1041. Now if the entry in the calendar is for the guidance of the clerk, and therefrom he enters the required judgments, it seems to us such entry tends to show a decree was ordered by the court, and this must precede the actual entry of the decree of record. The calendar had been destroyed, and therefore evidence was admissible as to its contents. The evidence, we think, was admissible.

III. Against the objection of appellant, Webster and Loomis were permitted to give evidence tending to show they, or one of them, had read the petition in the case of Edwards against appellant, and that the only relief therein asked was a divorce. It is insisted this evidence was inadmissible, because there was no evidence tending to show the petition and papers had been lost or destroyed. Before the evidence was offered it had been stipulated Webster would testify "that all the papers in causes adjudicated or pending, at the time of the fire in 1876, were destroyed." There was other evidence showing the destruction of the papers by fire. We think it was sufficiently shown the papers were not in existence, and, therefore, secondary evidence of the contents of the petition was admissible.

IV. In 1874 and after, as is claimed, the divorce was obtained, the appellant resided in "Mead's building." The administrator was introduced as a witness by the appellee and testified he knew the appellant when she resided at the place aforesaid, and that he never "saw deceased at appellant's while she lived over the printing office. Deceased might have visited appellant nights." In rebuttal the appellant testified: "I remember living in Mead's building; while there Edwards visited me evenings five times." On motion of appellee, this evidence was struck out on the ground it was in relation to a personal transaction between appellant and the deceased, and therefore inadmissible under section 3639 of the Code. Thereupon appellant was...