Inman v. Inman
| Decision Date | 13 November 1923 |
| Docket Number | 35601 |
| Citation | 195 N.W. 583,196 Iowa 845 |
| Parties | LUCY E. INMAN, Appellee, v. H. L. INMAN, Appellant |
| Court | Iowa Supreme Court |
Appeal from Poweshiek District Court.--CHARLES A. DEWEY, Judge.
ACTION for divorce, on the ground of cruel and inhuman treatment. Decree for plaintiff, granting her a divorce, awarding her the custody of a minor child, and fixing the amount of alimony. The defendant appeals.
Affirmed.
R. J Smith, for appellant.
T. J Bray, for appellee.
I.
The first question presented involves a consideration of the action of the court in overruling appellant's motion for a continuance of the case. The petition in the cause was filed December 13, 1921. The service of the original notice was by publication, the last publication being on February 14, 1922. Appellant appeared by counsel on March 13, 1922, and filed answer on May 22d of that year. In said answer so filed, appellant alleged that he had commenced an action for divorce against appellee in the state of Texas, and that the issues had been made up, and said action was then pending. It appears that the term at which the cause was tried commenced on September 4, 1922, and on that day the cause was assigned for trial on September 8th. On the last named date, at the request of counsel for appellant, the time of trial was postponed until September 18th. The trial was again postponed until September 19th. When the cause was called for trial, counsel for appellant filed a motion for a continuance. Also, on said day he filed an amendment to his answer. The amendment alleges that, "on the day of August, 1922," a decree of divorce had been duly entered in the district court of Texas in and for Dallas County, in favor of appellant and against the appellee. The affidavit in support of the motion for continuance was made by counsel for appellant, and stated that appellant was a resident of Texas, and contained the statement that, during the month of August, 1922, the appellant had obtained a divorce from the appellee in Texas, and that transcript of the decree and other proceedings in said case had been received by appellant's attorney, but that they contained clerical errors in not being properly certified, and that the same had been returned to Texas on or about the 12th and 13th of September, for correction and due exemplification as required by law, and that the same had not been returned to appellant's counsel. A copy of the decree purporting to have been entered in the state of Texas was made a part of said motion for continuance. A resistance was filed to the motion for a continuance, and the motion was denied.
The trial court might, within its discretion, have granted a continuance upon the showing made, and have enabled the appellant to secure a duly certified copy of the decree of the Texas court; but we do not think that the court so abused its discretion in this regard as to require a reversal of the case. The answer, which was filed on May 22, 1922, pleaded the pendency of the action in the state of Texas at that time. It appears from the copy attached to the motion that the decree was rendered in Texas on the 11th of August. There was no showing as to the date when the attorney for appellant received the copy of this decree. The affidavit shows that the papers were returned to Texas on the 12th and 13th of September, after the case had been assigned for trial on the 18th.
The likelihood of the papers' reaching Texas by mail and being recertified and returned in time for the hearing was quite remote. No amendment to the answer was filed, setting up the rendition of such alleged decree, until the 19th of September, when the cause was reached for trial. Appellant's Iowa counsel had been advised at least since the answer was filed, in May, of the pendency of the Texas case. The case and facility of telegraphic communication could readily have procured the properly certified papers within ample time, even after the error had been discovered by counsel for appellant. With the cause already assigned for trial, the exercise of diligence might well have suggested a more expeditions effort to secure the certified transcript.
Furthermore, there was available to appellant the remedy of application for a new trial of the cause, upon a proper showing that a valid decree of divorce had, in fact, been entered in the state of Texas, antedating the trial of this cause. No such application was made.
Under all of the facts and circumstances as disclosed by the record, we do not feel warranted in holding that the court abused its discretion in refusing to grant a further continuance of the case, upon the showing made.
II. Appellant contends that the evidence is insufficient to justify the granting of a divorce. No evidence was offered in behalf of appellant. The testimony in behalf of the appellee shows that the parties to this action were married September 7, 1902, and lived together until the 6th of October, 1921. At the time of the trial, appellee was 39 years of age, and appellant 43. Shortly after their marriage, they began farming in Poweshiek County, and farmed for several years, when they moved to the state of Montana, where they resided for two years. Subsequently, they lived two years in Wyoming, and then returned to Montana for a period of three years, and came back to Iowa in April of 1920. Three children have been born of the marriage, one of whom died. The elder is a daughter, nineteen years of age, the other child a son, of sixteen. The evidence in behalf of appellee tends to show that, for a number of years, the married life had not been happy. Appellant, it appears, was much given to being away from home, and, as it is expressed in the testimony, he was "gadding around most of the time." Part of the time, the wife had to pump and carry water for seven head of horses, two cows, and eighteen or twenty head of hogs, aside from taking care of the children and doing the housework and cooking and waiting on hired men, of whom, after the return to Iowa, appellant kept one all of the time, and from two to four at other times. The evidence shows that appellee's health was not good, and that, when she requested help, appellant denied her any, and at different times cursed and swore at her. At one time, he told her...
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