Jacobsen v. Saner, 48806

• Decision Date: 15 November 1955
• Docket Number: No. 48806,48806
• Citation: 72 N.W.2d 900,247 Iowa 191
• Parties: Peter JACOBSEN, Plaintiff-Appellant, v. Louis N. SANER, Defendant-Appellee.
• Court: Iowa Supreme Court

Page 900

72 N.W.2d 900

247 Iowa 191

Peter JACOBSEN, Plaintiff-Appellant, v. Louis N. SANER, Defendant-Appellee.

No. 48806.

Supreme Court of Iowa.

Nov. 15, 1955.

W. B. Perry, Storm Lake, for appellant.

Pendleton & Pendleton, Storm Lake, for appellee.

HAYS, Justice.

Appeal from a judgment sustaining Defendant's motion to dismiss Plaintiff's petition.

The petition asks damages from Defendant for alleged alienation of affections of Plaintiff's ex-wife. It alleges that Plaintiff and Josephine Jacobsen were married in 1924, and resided in Minnesota. Due to alleged acts of Saner, while he was living in Minnesota, Josephine Jacobsen was induced to file divorce proceedings; and later she obtained a default decree in Lincoln County, Minnesota. Defendant is now a resident of Buena Vista County, Iowa, where this action was brought. Defendant's motion to dismiss alleges that said petition fails to state a cause of action under Section 598.16, Code of 1954, I.C.A.

Section 598.16 provides: 'When a divorce is decreed the guilty party forfeits all rights acquired by marriage.' We have held that, under this section, the guilty party is barred from prosecuting an action for alienation of affections. Hamilton v. McNeill, 150 Iowa 470, 129 N.W. 480; Duff v. Henderson, 191 Iowa 319, 183 N.W. 475. See also Annotation 20 A.L.R. 943. Both cited cases involve Iowa decrees. Plaintiff asserts the rule announced therein has no application to a decree granted in a state where such an action is recognized. While Plaintiff has not pleaded the Minnesota law as required by 58 I.C.A. Rule 94, R.C.P.; it is inconsequential since the trial court stated, with apparent approval of both parties: 'For the purpose of this ruling it is conceded, I believe, that Minnesota does not follow this rule.' We proceed on this assumption.

Plaintiff concedes that had the divorce decree been entered by an Iowa court, the holding in above cited cases would bar his action in the Iowa courts. He asserts, however, that comity between states requires the Iowa courts to recognize his cause of action; it being available to him in Minnesota, where the alleged tort was committed. We find no merit in this contention.

Comity is merely a principle in accordance with which the courts of one state will give effect to the laws and judicial decisions of another, not as a matter of right but out of deference and respect. As is said in Russian Socialist Federated Soviet Republic v. Cibrario, 235 N.Y. 255, 139 N.E. 259, 261: 'The use of the word 'comity' as expressing the basis of jurisdiction has been criticized. It is, however, a mere question of definition. The principles lying behind the word are recognized. * * * the truth remains that the jurisdiction depends upon the law of the forum, and this law in turn depends upon the public policy disclosed by the acts and declarations of the political departments of the government.' See also Redfern v. Redfern, 212 Iowa 454, 236 N.W. 399.

It is a fundamental and well established rule that no action may be maintained upon a cause of action created in another state, the enforcement of which is contrary to the strong public policy of the forum. Restatement of Law, Conflict of Laws, Section 612; 15 C.J.S., Conflict of Laws, § 4; Farmers' & Merchants' Nat. Bank of Fort Worth, Texas v. Anderson, 216 Iowa 988, 250 N.W. 214; Kingery v. Donnell, 222 Iowa 241, 268 N.W. 617. In the latter case, it is said, 222 Iowa 241, 245, 268 N.W. 617, 619: "While it is well recognized that the statutes of another state have no extraterritorial force; yet rights acquired thereunder will always, in comity, be enforced, if not against the public policy of the laws of the state where redress is sought."

By the enactment of Section 598.16, Code of 1954, I.C.A., our legislature, under the construction given said Section by this court in the Hamilton and Duff cases above cited, has in effect said: Where a...