Martin v. Beaver

• Decision Date: 11 November 1947
• Docket Number: 47025.
• Parties: MARTIN v. BEAVER.
• Court: Iowa Supreme Court

29 N.W.2d 555

238 Iowa 1143

MARTIN v. BEAVER.

No. 47025.

Supreme Court of Iowa

November 11, 1947

Carlos W. Goltz, of Sioux City, for appellant.

Hobart E. Newton, of Stuart, and Jones & Cambridge, of Atlantic for appellee.

HALE, Justice

On August 24 1943, the wife of Wilfred Martin, plaintiff in this action was awarded a decree of divorce in Adair county with alimony and an award of certain household goods. The plaintiff in that suit is the daughter of defendant, Earl Beaver, of Cass county.

There was a child, James, of that marriage whose custody was granted to the mother with the right of visitation to the father, who was also given the right to take the child to his home once each month for a visit not to exceed one day at a time. Subsequently, on the 21st of June, 1944, the decree as to the custody of the child was modified to the extent that Wilfred Martin was permitted to have the child in his custody one day and night of each month of the year, with certain restrictions; that the child should not be taken out of the state, or to public or semi-public gatherings or meetings.

On Tuesday June 27, 1944, plaintiff drove to the residence of the defendant, Earl Beaver, in Anita, and took his son James home with him. At about 8 o'clock the next day he returned with his son to the Beaver residence where an altercation occurred between the plaintiff and the defendant, and according to the plaintiff this was about 9 o'clock in the evening. The grandfather, Beaver, asked why plaintiff did not return James sooner. There was some discussion, and according to plaintiff there was an argument and defendant called him vile names and struck him and severely injured him. Plaintiff claims in his testimony that defendant threatened him and further claimed that the defendant was intoxicated. It seems that this occurred before plaintiff left the premises and continued until he got into his car. Plaintiff claims he was struck three or four times and that defendant tried to reach in the window of the car to strike him again. Beaver went into the house, plaintiff states, at the request of his wife. Plaintiff then had a conversation with Mrs. Beaver, lasting from five to ten minutes, Apparently Margery, plaintiff's former wife, was in the house but did not come out.

It is unnecessary to go into all the details of the controversy that took place at that time, but the result was that plaintiff was, to some extent, injured. He states that he did not go after the child again until October, 1944, testifying that he was afraid, but since that time and up to the trial of this action he went after the child every month and has never been interfered with. There was medical testimony as to the extent of his injuries, but so far as the record shows there has never been a repitition of any violence toward him. It is claimed by defendant that just prior to the time of the attack he ordered plaintiff off the premises, and there is no evidence that plaintiff was struck after he got into his car.

After this trouble on June 28th, the plaintiff, on July 27, 1944, filed a petition in equity reciting the facts of the divorce with modification of the decree, and the terms of the decree, and the fact of the alleged assault, and an affidavit showing his injuries, charging that the plaintiff fears for his safety, and that his life and well-being will be endangered and that his property will be destroyed; that he has no plain, speedy or adequate remedy at law, and pleads that unless the writ of injunction issue he will suffer great and irreparable injury at the hands of the defendant; that the wrongful acts of the defendant will affect the health and welfare of James, and that defendant is endeavoring to deny plaintiff the right to see and visit his son; that defendant endeavored to demolish his automobile and asks that defendant be restrained from the commission or continuance of the said acts; and asks an injunction prohibiting the defendant from interfering with or obstructing or stopping the plaintiff from seeing his child, or the use of threats, assaults, or injury by violence to himself or to his property, and the usual allegations of a petition for injunction.

To this petition filed in Cass county the defendant filed a special appearance which was overruled, and on October 7th the defendant filed a motion to dismiss, with various allegations, which was also overruled by Judge Davidson on October 13th. The grounds of this ruling were that the jurisdiction was in Cass county; that Earl Beaver was not a party to the divorce action in Adair county; that plaintiff's petition sets out sufficient facts, if true, to establish a prima facie case; that there was no other action pending between the same parties for the same reasons and upon the same cause of action, and that the said Earl Beaver is the sole defendant.

Answer to the petition for injunction was filed October 19th setting up again the question of jurisdiction, and another action pending, and alleging that the plaintiff maliciously attempted to provoke a quarrel on the evening of the return of the child and he has at all times since the divorce decree attempted to molest the defendant and his daughter, Margery Martin, and did at the time and place stated in plaintiff's petition maliciously and designedly attempt to incite this defendant to physical violence against him. The defendant further answering alleges that the plaintiff has a plain, speedy and adequate remedy at law; that the plaintiff has pending in the district court in Cass county and action for damages for the sum of $15,000. Further, by amendment filed April 11, 1945, defendant alleges that since the month of October, 1944, the plaintiff has taken the child one day and on night each month, as provided by the decree of the district court, and has in no manner been disturbed, molested, or interfered with. A motion to strike the amendment to the answer was overruled, and plaintiff filed a reply stating that he was not permitted to visit the child for a considerable time, and alleging that while he has not been disturbed or molested since October, 1944, the conduct of defendant and the atmosphere has been so at all times that the plaintiff is fearful that there might be further violence.

I. The trial of this action terminated on April 13, 1945, and on July 18th following the court rendered a decree finding, among other things, that the plaintiff did not leave the premises of the defendant promptly after returning the child, and that the actions of the defendant from that time on consisted in endeavoring to get the plaintiff to leave the premises. The court held that under the facts defendant had a right to require the plaintiff to leave his premises and to eject him therefrom; that having since been unmolested the facts are not such as to invoke the remedy of injunction and that the petition of plaintiff is dismissed.

Plaintiff-appellant denies that the findings of the court are supported by the testimony, or that the conclusions of law are warranted; alleges that the law of the case was established by the ruling of Judge Davidson, and argues that it is elementary that one court cannot sit in review upon the decisions of another court of concurrent jurisdiction; that judges of coordinate jurisdiction sitting in the same court in the same case should not overrule the decisions of each other, and that a decision once rendered by a trial court is res judicata as to the issues passed upon. He alleges further that...