Meisenheimer v. Meisenheimer

• Decision Date: 27 September 1909
• Citation: 104 P. 159,55 Wash. 32
• Parties: MEISENHEIMER v. MEISENHEIMER.
• Court: Washington Supreme Court

104 P. 159

55 Wash. 32

MEISENHEIMER v. MEISENHEIMER.

Supreme Court of Washington

September 27, 1909

Department 1. Appeal from Superior Court, Douglas County; R. S. Steiner Judge.

Action by Esta Meisenheimer against Allen Meisenheimer. From a decree for plaintiff, defendant appeals. Reversed, and decree directed for defendant for costs.

Graves Kizer & Graves and Merrill, Oswald & Merrill, for appellant.

W. E Southard, Southard & Southard, and Robertson, Miller & Resenhaupt, for respondent.

GOSE J.

This action, instituted by the respondent to vacate a decree of divorce theretofore entered against her, resulted in a decree in her favor, from which this appeal was taken.

The complaint, which is quite lengthy, in substance alleged that the appellant and the respondent were married on November 27, 1899; that because the appellant was then engaged to marry another woman, the marriage was concealed from the public; that on December 27, 1904, the appellant, through fraudulent means, procured a decree of divorce to be entered in the superior court of Douglas county; that the fraud consisted in this: That at the time of the commencement of the action and the entry of the decree, the appellant was a resident of Adams county; that the decree was entered upon the service of a summons entitled in the superior court of Adams county; that the cause for divorce alleged in the complaint was abandonment on the part of the respondent, when, as the appellant well knew, there had been no abandonment; that the respondent, after the service of summons and complaint, relying upon the promise of the appellant and his attorney that he would protect her interests, and that no valid separation or divorce would be had, and that if necessary he would remarry her, neither employed counsel nor appeared in the action; that at the trial the appellant testified that the respondent had abandoned him, well knowing such evidence to be false and untrue; that the appellant was prosecuted on the charge of perjury in the superior court of Douglas county, for giving false testimony therein; that upon the trial he and his counsel therein claimed that the divorce proceedings were void; that the court had no jurisdiction, because no summons other than the one entitled in the superior court of Adams county was served, and upon the motion of the appellant the jury was instructed to that effect; that the appellant concealed from the court a large amount of community property, held in trust by various parties, of the value of $150,000; that after the entry of the decree the appellant married one Maud Motley, who knew of the respondent's rights; that thereafter the respondent employed an attorney to procure the vacation of the decree, and that he conspired with the appellant to defraud her of her marital and property rights; that the respondent had at all times a meritorious defense to the action; and that she did not abandon the appellant. The prayer is that the decree and the order of Judge Chadwick, hereafter spoken of, be vacated, and that the respondent be restored to her marital rights. The answer joined issue on all the allegations of fraud and want of jurisdiction.

On November 1, 1905, 10 months after the entry of the decree, and four months after the marriage of appellant to a third party, the respondent filed a motion in the original action to vacate the decree. The motion is as follows: 'Comes now the above-named defendant, Esta Meisenheimer, and appearing herein specially for the purpose of this motion, and for no other purpose, moves the court: (1) To quash, vacate, set aside, and hold for naught the summons and proof of services thereof in the above-entitled cause; (2) to vacate, set aside, hold for naught, and strike from the records herein the findings of fact and conclusions of law filed in the above court in the above-entitled action on the 27th day of December, 1904; (3) to vacate, set aside, hold for naught, and strike from the files of said court the decree and judgment heretofore entered in the above-entitled court in favor of the plaintiff and against the defendant, signed and entered on the 27th day of December, 1904; (4) to dismiss the above-entitled cause and action for the reason and on the ground that no service of the pretended summons on file herein was had or made upon the defendant as required by law, or at all--all for the reason and on the ground that the court was without jurisdiction, for the reason that no summons in the above-entitled cause was served upon the defendant as required by law, or at all. This motion is made upon all the papers, pleadings, and files herein, and upon the affidavit of the defendant hereto attached and the copy of the summons mentioned in said affidavit, the original of which defendant prays permission of this court to bring into court on the hearing of this motion, and to exhibit same and to have same read in and made a part of the evidence and a part of the record on said hearing in support of this defendant's motion.' The motion was heard upon the record and the affidavits of the parties. The counter affidavit of the respondent presented the principal facts pleaded in the complaint in the instant case in detail. Thereupon the parties stipulated as follows: 'It is hereby stipulated and agreed by and between the parties to the above-entitled cause, through their respective attorneys, that said cause may be heard before Hon. S. J. Chadwick, judge of the superior court of the state of Washington, for Whitman county, provided the said Judge Chadwick will hear the motion to vacate the decree in said cause in the city of Spokane, and it is stipulated and agreed that said motion may be heard in Spokane at any time to suit the convenience of the said S. J. Chadwick. It is further stipulated and agreed that for the purpose of carrying out this stipulation the clerk of the superior court of the state of Washington for the county of Douglas shall transfer the original files to the clerk of Spokane county.' A copy of the stipulation, with the following letter, was then mailed to Judge Steiner, the superior judge of Douglas county: 'March 17, 1906. Spokane, Wash. Hon. R. S. Steiner, Wenatchee, Wash.--My dear Judge: For the convenience of parties and witnesses Mr. Belden and ourselves have stipulated that the motion in the Meisenheimer case might be heard before Judge Chadwick, he coming here to Spokane to hear it, and he has consented to do so. We do not change the venue of the case, but simply have Judge Chadwick act and hear the motion here. We inclose you a copy of the stipulation, the original having been sent to the clerk at Waterville. We desire very much that you approve this arrangement and direct the clerk to send the files to the clerk of Spokane county to be under his charge while this matter is being heard. Hoping that you will do this, we are, Yours very truly, Merritt & Merritt. Dic. J. W. M.' Upon the stipulation and the letter Judge Steiner made the following order: 'On reading the foregoing letter and copy of stipulation therewith it is ordered that the cause therein referred to be transferred to the superior court for Spokane county for the purpose indicated, and that the clerk of the superior court for Douglas county transmit the papers in said cause to the clerk of the superior court for Spokane county. Dated at Wenatchee, March 19, 1906. R. S. Steiner, Judge.'

On June 15, 1906, Judge Chadwick, sitting in the city of Spokane, heard the motion, affidavits, and argument of counsel, whereupon he made the following order: 'This cause coming on to be heard this 15th day of June, 1906, before the Hon. S. J. Chadwick, judge of the superior court of the state of Washington, for Whitman county, under the provisions of the stipulation herein, upon the motion of the defendants to vacate and set aside the decree entered in said cause, on the 27th day of December, 1904, hereinbefore filed in said cause, and the plaintiff appearing by O. R. Holcomb and Merritt & Merritt, his attorneys, and the defendant appearing by E. H. Belden, her attorney, and before proceeding with the argument upon said motion the defendant in open court moves to strike from the said motion ground four (4) thereof, and no objection being made thereto, it was ordered by the court that said ground be stricken, and held as waived by the defendant, and the court, having heard the argument of counsel upon said motion to vacate and set aside said decree, and being sufficiently advised in the premises, overruled the same. It is therefore ordered and adjudged that said motion to vacate the said decree be and the same hereby is overruled and denied, to which ruling of the court defendant excepts, and exception is allowed. S. J. Chadwick, Judge.' The order was filed in the superior court of Douglas county January 10, 1907, and an appeal taken therefrom February 26th following, which was dismissed on May 3d following upon the stipulation of counsel for the respective parties. At the time of the hearing of the motion the respondent knew and presented all the facts which she now urges in support of the decree in the instant case, except the alleged collusion between her then counsel and the appellant, and the estoppel hereafter noticed.

The respondent first urges with great zeal that the evidence discloses that the only summons served in the divorce action was one entitled in the superior court of Adams county, whilst, as we have seen, the decree was entered in the superior court of Douglas county, and that for this reason the court was without jurisdiction, and the decree is void. Conceding for the moment the service to be as the respondent states, the conclusion which she deduces does not follow. The record is regular. The original...