Kelly v. Dewees
| Decision Date | 03 June 1940 |
| Docket Number | 4-5981 |
| Citation | 140 S.W.2d 1011,200 Ark. 770 |
| Parties | KELLY v. DEWEES |
| Court | Arkansas Supreme Court |
Appeal from Garland Circuit Court; Earl Witt, Judge; affirmed.
Affirmed.
David B. Whittington, for appellant.
Henderson Meek & Hall, for appellee.
The parties to this action were formerly husband and wife. On September 24, 1936, they were divorced by the decree of the Second Judicial District Court of the State of Nevada, Washoe county, on the petition of appellee, in which appellant entered his appearance, filed an answer and was represented by counsel. This decree awarded alimony of $ 100 per month to appellee, based on a written separation agreement of the parties, dated September 2, 1936. Appellant made these monthly alimony payments up to September 1, 1938 but defaulted on that payment. On October 3, 1938, he paid $ 25.00 of the amount due September 1, leaving a balance of $ 75.00 due for that month, and has paid nothing since. Appellee, who is a resident of the State of New York, brought this action in the circuit court of Garland county, where appellant is now residing, to recover a judgment against him for the accrued and unpaid alimony payments, based on the decree of the Nevada court. Appellant appeared and moved to transfer to equity. He alleged as a ground therefor, although not abstracted by him, that the alimony decree was obtained by fraud, "in that, at the time of entering into the separation agreement referred to by the said alimony decree, the plaintiff (appellee) had represented to the defendant (appellant) that she would claim only temporary support under the said separation agreement, that such representation was false, but was in good faith relied on by the defendant. . . ." He further alleged that it was agreed that the separation agreement would not be incorporated in any divorce decree that might be granted her, which was relied on by him and that he was thereby induced to enter into said agreement; and that he desired to impeach said decree for this fraud and could only do so in a court of equity. His motion to transfer was overruled. Trial resulted in a judgment for $ 1,375 against appellant.
The only suggestion of error on this appeal is the refusal of the circuit court to transfer the cause to equity. We think no error was committed in this regard. The separation agreement referred to provided that, "beginning on September 1 1936, and on the first...
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McCoy Farms, Inc. v. J & M McKee, 77-201
...258 Ark. 118, 522 S.W.2d 669; Bates v. Simmons, 259 Ark. 657, 536 S.W.2d 292; Parker v. Wells, 84 Ark. 172, 105 S.W. 75; Kelly v. DeWees, 200 Ark. 770, 140 S.W.2d 1011. Error unaccompanied by prejudice, commonly called harmless error, is not ground for reversal. Keathley v. Yates, 232 Ark. ......
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Tolley v. Tolley
...is a final judgment and entitled to Full Faith and Credit presents an interesting question, and one not discussed in Kelly v. De Wees, 200 Ark. 770, 140 S.W.2d 1011. Under the rule laid down by the Supreme Court of the United States in Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. ......
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Tolley v. Tolley
... ... to full faith and credit presents an interesting question, ... and one not discussed in Kelly v. De Wees, ... 200 Ark. 770, 140 S.W.2d 1011. Under the rule laid down by ... the Supreme Court of the United States in Sistare v ... Sistare ... ...
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Arkansas Aviation Sales, Inc. v. Carter Const. Co., 5--5570
...that the purchase price for a concrete mixer would be paid for solely from the net profits from its operation. See also: Kelly v. DeWees, 200 Ark. 770, 140 S.W.2d 1011, where an effort was made to show a contemporaneous oral agreement that a written separation agreement would not be incorpo......