Luse v. Luse

• Citation: 122 N.W. 970,144 Iowa 396
• Parties: F. M. LUSE v. AMANDA LUSE, Appellant
• Decision Date: 28 October 1909
• Court: United States State Supreme Court of Iowa

122 N.W. 970

144 Iowa 396

F. M. LUSE v. AMANDA LUSE, Appellant

Supreme Court of Iowa, Des Moines

October 28, 1909

Appeal from Monona District Court.--HON. JOHN F. OLIVER, Judge.

ACTION for divorce on the ground of desertion. Defendant answered denying the allegations of plaintiff's petition, and interposing a counterclaim for divorce from plaintiff on the ground of misconduct tending to impair defendant's health. The court sustained a dismissal by plaintiff of his cause of action, and found that there had also been a dismissal by defendant of her counterclaim, and thereupon entered judgment against plaintiff for costs. The defendant appeals.

Affirmed.

C. R Metcalfe, for appellant.

T. B Lutz and C. E. Cooper, for appellee.

OPINION

MCCLAIN, J.

At the January term of the district court, issues were joined by the filing of defendant's answer, denying plaintiff's cause of action, and interposing a counterclaim for divorce from plaintiff, to which counterclaim the plaintiff filed a reply, denying the allegations thereof. At that term plaintiff filed a motion to set aside an order allowing defendant $ 50 temporary alimony, alleging that the motion for temporary alimony had never been assigned for hearing, and plaintiff had had no notice thereof; and, further, that plaintiff had a good defense to said motion. At the April term following, plaintiff paid to the clerk the sum of $ 50 for the use of defendant in preparing for trial, and the case was continued to the next term of court; but in the meantime the clerk of the district court had on March 12, 1908, during vacation, received a communication signed by defendant, dated on the previous day, addressed to him, as "County Clerk, Onawa, Iowa," in the following language: "Sir: Withdraw my answer, counterclaim, cross-bill, motion and claim for temporary alimony." On the day following the receipt and filing of this communication, the clerk received and filed another communication over defendant's signature, containing the same address, dated March 12, in the following language: "Sir: I recall the letter I wrote to you the 11the instant. I have found out that I have been frightened and imposed upon." On August 15th following, trial notice was filed by defendant. On August 29th following, plaintiff withdrew from court without any order therefor, and without the knowledge of defendant, the sum of $ 50 which had been paid in for the use of defendant during the April term. On September 7th following, plaintiff filed a motion dismissing his petition without prejudice and without withdrawal of appearance in the proceeding to resist defendant's counterclaim, and on the next day, over defendant's protest, the court sustained plaintiff's motion, and made a finding that defendant had withdrawn her counterclaim and all claims for temporary alimony, and ordered the cause to be stricken from the docket, entering judgment against plaintiff for costs.

Counsel for defendant, appealing from this order and judgment insists that the writing over defendant's signature, received and filed by the clerk on March 12th, did not constitute a dismissal of her counterclaim because insufficient in itself, and because it was withdrawn by the communication received and filed by the clerk on the following day, and he assigns error in the refusal of the court to require the plaintiff to return into court for defendant's benefit the $ 50 withdrawn therefrom and to allow defendant's attorney $ 100 for preparation of the...