Melvin v. Melvin

• Decision Date: 11 December 1924
• Docket Number: 36239
• Citation: 201 N.W. 7,198 Iowa 1283
• Parties: MARTHA E. MELVIN, Appellant, v. M. E. MELVIN et al., Appellees
• Court: Iowa Supreme Court

201 N.W. 7

198 Iowa 1283

MARTHA E. MELVIN, Appellant, v. M. E. MELVIN et al., Appellees

No. 36239

Supreme Court of Iowa, Des Moines

December 11, 1924

Appeal from Marshall District Court.--J. W. WILLETT, Judge.

SUIT in equity; begun within one year, to vacate and set aside a decree of divorce entered against the petitioner herein, in the district court of Marshall County, on July 13, 1922. The relief is sought on the ground that such court was wholly without jurisdiction to enter the decree, because both parties thereto were nonresidents of the state of Iowa and were actual residents of the state of California at the time the decree was rendered, and at all times pending such action for divorce. The plaintiff in the divorce action was M. E Melvin, named as defendant herein. The other defendants named herein are interested in that part of the decree allowing alimony and attorneys' fees. All the defendants joined in a motion to dismiss the petition "for want of equity." This motion was sustained, and judgment entered accordingly. From such order the plaintiff has appealed.--Reversed.

Reversed and remanded.

R. L Parrish, R. P. Scott, and C. C. Caswell, for appellant.

F. E Northup. C. H. E. Boardman, Walter Canady, and W. T. Bennett, for appellees.

EVANS, J. ARTHUR, C. J., and PRESTON and FAVILLE, JJ., concur.

OPINION

EVANS, J.

The petition herein was very lengthy. It could fairly be criticized as multifarious and argumentative. But it contained a fundamental allegation of nonresidence of both parties to the divorce proceeding, and a lack of jurisdiction of the court on that ground. Disregarding all its prolixities, it tendered a simple and material issue at that point.

Without joining issue on such allegation, the defendants chose to assail the petition as a whole, by motion to dismiss "for want of equity." Such motion has no warrant under our statutes. It is to be conceded that attorneys frequently resort to its use in the trial courts. We have diligently disapproved the practice, and have tolerated it only when it appears to be mutually acquiesced in by the opposing parties. In such case we have treated it as the equivalent of a demurrer, and governed by the same rules. So treating it here, the only question we need to consider is whether the petition sufficiently alleges the non-residence of the parties to the divorce suit at all times pending the action. If yea, then this was a sufficient basis upon which to challenge the jurisdiction. If the petition be deemed demurrable, the demurrer must be predicated upon the allegations of the petition itself, and not upon facts or records which are claimed to exist, and which do not appear from the petition. The motion of the defendants contained certain recitals of fact upon which the motion was in part predicated. The seven grounds of the motion were literally as follows:

"First The petition shows on its face that plaintiff is not entitled to the relief demanded, nor any relief whatever.

"Second: It appears affirmatively from the record of the case of Melvin vs. Melvin (divorce case) to this court, that Martha E. Melvin, this plaintiff, appeared in person and by counsel, obtained affirmative orders and judgments, asked and obtained affirmative relief, and that in no manner questioned the jurisdiction of this court. It further appears that from the judgment in this case in this court she appealed to the Supreme Court of Iowa, and personally and by counsel appeared, asked and obtained affirmative relief, each and all of which appears from the record made in this court and in the Supreme Court, which is admitted and affirmatively appears in the petition filed in this case. The plaintiff in this case, Martha E. Melvin, having exhausted all her rights in this court and in the Supreme Court, has had her day in court, and cannot retry her cause of action.

"Third: It is within the judicial knowledge of this court that Martha E. Melvin personally appeared in the divorce case, and also appeared by counsel, and testified that she was a resident of Marshall County, filed numerous affidavits to that effect, and in no manner challenged the jurisdiction of this court. It was also within the judicial knowledge of this court that the defendant M. E. Melvin was a resident of this county and of Marshalltown.

"Four: The petition in this case seeks to set aside a judgment rendered by this court, as the plaintiff, Martha E. Melvin, has personally appeared and appeared by counsel, has taken an appeal, and exhausted all her rights.

"Fifth: The petition in this case, while designated a petition to set aside a judgment and decree, is, in effect, a motion for new trial.

"Sixth Ignorance of the plaintiff, Martha E. Melvin, as to her legal rights, or the lack of knowledge of her attorneys to her legal rights, constitutes no grounds to set aside judgment and decree, particularly as an appeal has been taken to the Supreme Court from...