Mengel v. Mengel

• Citation: 120 N.W. 72,145 Iowa 737
• Parties: MENGEL v. MENGEL ET AL.
• Decision Date: 12 March 1909
• Court: United States State Supreme Court of Iowa

145 Iowa 737

120 N.W. 72

MENGEL

v.MENGEL ET AL.

Supreme Court of Iowa.

March 12, 1909.

Appeal from District Court, Scott County; A. J. House, Judge.

The plaintiff filed a petition in the office of the clerk of the district court of Iowa for Scott county, praying that a certain decree, granting alimony to the defendant herein, be canceled and vacated, and that a levy made thereunder be released, and that temporary injunction be granted, pending the application, restraining the enforcement of said alleged void judgment for alimony. The petition was demurred to and the demurrer sustained. Plaintiff elected to stand upon the demurrer and his pleadings, and thereupon his application for temporary injunction was overruled under due exception. This appeal is from said action of the court. Affirmed.Ruymann & Ruymann and Salinger, Scott & Theophilus, for appellant.

Sharon & Donegan, for appellees.

McCLAIN, J.

Under a decree of divorce rendered in a suit brought by this defendant against this plaintiff, there was a decree granting to the plaintiff in that case temporary alimony, and from such decree there was an appeal to this court resulting in an affirmance and the entry of judgment against said defendant on which execution issued with a levy on property of defendant, whereupon this suit was instituted to enjoin the enforcement of the judgment on two grounds: First, that the plaintiff in the divorce suit knowingly, willfully, fraudulently, and corruptly swore falsely in an affidavit supporting her motion for temporary alimony that she had no property nor means of support; and, second, that in the petition in the divorce suit there was no allegation that the application was made in good faith and for the purpose set forth in said petition as required by Code, § 3172, in such cases. The foregoing are the facts alleged in plaintiff's amended and substituted petition, and they are for the purposes of the case admitted by defendant's demurrer thereto which the court sustained.

1. Error is assigned in sustaining a demurrer not sufficiently specific. It is provided in Code, § 3562, that in an equity case the ground of demurrer to the petition that the facts stated therein do not entitle the plaintiff to the relief demanded is sufficient to raise that objection, although in an action brought by ordinary proceedings greater particularity in stating such objection is required. In appellant's abstract it is not specifically indicated whether the action was at law or in equity, but the sole relief demanded was that the plaintiff in that proceeding and the sheriff who was joined with her as defendant in this suit be enjoined from enforcing the judgment for temporary alimony, and that such judgment be held null and void and set aside and vacated, and the levy released and sale recalled, and that plaintiff have such other further relief as might be just and proper. The relief asked in this petition could only be granted in a court of equity. See Code, §§ 3427, 4354. In argument it is suggested that the action is in effect an application for a new trial and to set aside an order made in the case in which said order was entered, under Code, § 4092, and that the injunction is by way of auxiliary relief as authorized in Code, § 4098. The difficulty with this claim is that no new trial is asked. The only relief applied for is to have the defendants enjoined from enforcing the judgment in the divorce proceeding and to have such judgment held null and void and set aside and vacated. This is plainly a prayer for equitable relief and not for a new trial under the...