Larimer v. Knoyle

• Citation: 23 P. 487,43 Kan. 338
• Parties: J. B. LARIMER et al. v. SARAH ANN KNOYLE
• Decision Date: 08 March 1890
• Court: Kansas Supreme Court

23 P. 487

43 Kan. 338

J. B. LARIMER et al. v. SARAH ANN KNOYLE

Supreme Court of Kansas

March 8, 1890

Error from Shawnee District Court.

JUDGMENT for plaintiff Knoyle, at the January term, 1888. The facts are substantially stated in the opinion.

Judgment reversed and cause remanded.

J. B Larimer, and John W. Day, for plaintiffs in error.

Elliott & Bradley, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought in the district court of Shawnee county, by Sarah Ann Knoyle against J. B. Larimer and others to set aside a certain will of Jeremiah Knoyle, deceased, and to have the estate purporting to be disposed of by the will declared to belong to the plaintiff, who, she alleges, is the widow and sole surviving heir of the deceased; but the question finally decided by the court below, and the one brought to this court, is, whether a certain decree of divorce purporting to divorce the aforesaid Jeremiah Knoyle from the aforesaid Sarah Ann Knoyle is void or not for want of jurisdiction in the court rendering it, or for fraud on the part of Knoyle in procuring it. A full set of pleadings was filed in the case, a petition, an answer, a reply and a demurrer by the defendants, to the second paragraph of the reply. The demurrer was overruled by the court below, and the defendants, as plaintiffs in error, bring the case to this court for the purpose of having such ruling reviewed and reversed.

The facts of the case, admitted by the pleadings, appear to be substantially as follows: On October 16, 1860, the aforesaid Jeremiah Knoyle and Sarah Ann Knoyle were married. She at the time had about $ 2,000 in money and personal property, which he obtained from her and used. They lived together as husband and wife up to about February 24, 1884, and during the time by their joint efforts they accumulated a large amount of property. From about the year 1869 until his death, which took place on May 1, 1887, they resided in Kansas, and she has resided here since except as hereafter stated. Prior to February 24, 1884, he sent her out of the state of Kansas to visit friends in other states, where she remained until after his death, which took place as before stated on May 1, 1887. On September 1, 1884, he paid to her $ 1,700 and took a receipt therefor, which shows on its face that the amount was paid in discharge of all claims by her against him and his estate; but she alleges in her reply that the receipt was procured from her fraudulently, she believing at the time that it was intended to be nothing more than merely a receipt for $ 1,700. On February 24,1885, Knoyle, by his counsel, drew up a petition for a divorce from his wife upon the ground of willful absence from him and abandonment of him for a period of more than one year. On the same day he verified his petition by stating upon oath that the allegations therein contained were true. Also on the same day, February 24, 1885, he made another affidavit, which was for service of summons by publication, in which he stated, among other things, that Sarah Ann Knoyle, the defendant in that action, was a non-resident of the state of Kansas, and that service of summons could not be made upon her within the state. On February 26, 1885, he filed all these papers in the district court of Pottawatomie county, in which county he resided, and on the next day, February 27, 1885, he commenced to procure service of summons by publication by having a proper notice of the action published in a newspaper of the city of Wamego, in said county -- the first publication being on that day. This publication was continued in each issue of the newspaper for four consecutive weeks. The answer-day was to be on or before April 11, 1885. On February 28, 1885, Knoyle made another affidavit, in which he stated that the residence of Sarah Ann Knoyle, the defendant in that action, was unknown to him, and that he could not ascertain the same by any means within his control. This affidavit was filed in the district court of Pottawatomie county on March 3, 1885. On June 13, 1885, the aforesaid decree of divorce was granted to Knoyle, Sarah Ann Knoyle never having made any appearance in the case. On July 24, 1886, Knoyle executed a will, giving all his property, real and personal, to others than Sarah Ann Knoyle, and appointing J. B. Larimer as his executor. On May 1, 1887, Knoyle died, leaving no children or offspring, nor any wife unless Sarah Ann Knoyle was still his wife. Afterward the aforesaid will was duly probated, and J. B. Larimer, who is the executor under it, and one of the defendants in this action, is now in the possession of all the estate of the deceased testator. This action, which was brought to set aside said will, etc., was commenced on June 2, 1887. On July 14, 1887, Larimer answered, setting up among other things the aforesaid decree of divorce, and alleging that because of such divorce, the plaintiff, Mrs. Knoyle, was not the wife of Knoyle at the time of his death, and could not, under the laws of Kansas, and the laws of descents and distributions, take any interest in her former husband's estate. On August 24, 1887, the plaintiff replied, setting forth in the second paragraph of her reply, as follows:

"2. And for a further and additional reply to said answer, the plaintiff says: That when she, the said plaintiff, was married to said Jeremiah Knoyle, now deceased, she owned in her own right a large amount of money and personal property aggregating in value about $ 2,000, and she at that time gave it into the possession of said Jeremiah Knoyle, and that he invested the same in real estate in his own name and used the same as his own money, and never refunded any portion of it to plaintiff, or in any manner paid it or any part of it to her; and that she continued to live with him for a period of about 24 years as his wife, and toiled and drudged for him, and by her work and economy and toil assisted him to accumulate all the property of which he died possessed; that during the entire period of her married life she continued to be a loyal, devoted, and obedient wife to said Jeremiah Knoyle; that sometime in 1878, and when she was far advanced in years, the said Jeremiah Knoyle, by the careless and reckless driving of a team, injured her, the plaintiff, so severely that she became a cripple for life; that when he realized she was so hopelessly crippled that she could toil and drudge for him no more, he cruelly determined to rid himself of her, to get divorced from her, and without her knowledge and consent; and sometime prior to February 24, 1884, he, said Jeremiah Knoyle, sent the plaintiff away to visit her relatives, with the understanding that she was to visit and rest with her relatives in the states of Wisconsin, Michigan, and Pennsylvania; that while she was away on said visit he knew all the time and every day where she was, and was continually corresponding with her and her relatives with whom she was visiting, during all of said time. And while she was so visiting, he, said Jeremiah Knoyle, gave her the $ 1,700 mentioned in the exhibit attached to plaintiff's answer, and by representing to her that said writing was only a receipt, induced her to sign the said paper copied in said answer, and she, relying upon his representations and good faith, and believing that it was intended only as a receipt for that money, signed said paper. And afterward the said Jeremiah Knoyle, fraudulently designing to obtain a divorce from said plaintiff, and without her knowledge and consent, did, on the 26th day of February, 1885, file a false petition against her for a divorce, falsely charging her with abandoning him, in the office of the clerk of the district court of Pottawatomie county, Kansas. And the plaintiff says the said charge of abandonment was wholly false; that he never made or caused to be made any legal service of summons, either personal or constructive, or by publication or otherwise, in said cause. He caused a notice of said divorce proceedings to be published in the Kansas Reporter, a newspaper published in the city of Wamego, in said Pottawatomie county, but he, said Jeremiah Knoyle, notwithstanding he well knew all the time where said Sarah Ann Knoyle was, and what her post office address was, never sent her any notice of said divorce, and never at any time inclosed a copy of his said petition for divorce with a copy of said publication notice attached thereto, in an envelope addressed to said Sarah Ann Knoyle at her place of residence, postage prepaid, or otherwise, and never deposited the same in the nearest post office or in any post office, and never sent the same, and never attempted to send it to the said Sarah Ann Knoyle, but he, said Jeremiah Knoyle, falsely, fraudulently, and wrongfully, did, on the 28th day of February, 1885, make and file an affidavit in said district court of Pottawatomie county, stating in substance that the residence of the said Sarah Ann Knoyle was then unknown to him, and the same could not be ascertained by any means within his control; and the plaintiff avers that said Jeremiah Knoyle well knew where her place of residence was on the said 28th day of February, 1885. A complete transcript of the records of the court in said pretended divorce proceedings is hereto attached and made a part of this reply, marked 'Exhibit A.' And plaintiff says that there was no other service, or pretended or attempted service of summons, either personally, constructively, or otherwise, except as hereinbefore stated, in said pretended divorce proceedings; and the plaintiff never waived any service of summons in said case, and never in any manner entered her appearance therein; and that the said pretended...