Mengel v. Mengel
| Decision Date | 27 October 1909 |
| Parties | MENGEL v. MENGEL ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Scott County; A. J. House, Judge.
Supplemental opinion on petition for rehearing. Petition denied.
For former opinion, see 120 N. W. 72.
*899Ruymann & Ruymann and Salinger, Scott & Theophilus, for appellant.
Sharon & Donegan, for appellees.
The appellant insists, in a petition for a rehearing, that the opinion is counter to decisions of this court on the question of jurisdiction in a divorce proceeding instituted by a petition lacking the essential averment that the application was “made in good faith.” The cases in this court now relied upon are Pinkney v. Pinkney, 4 G. Greene, 324,Lyster v. Lyster, 1 Iowa, 130,Inskeep v. Inskeep, 5 Iowa, 204-208, and Blinn v. Blinn, 113 Iowa, 83, 84 N. W. 957. These cases were not cited by appellant on the original submission, and, as we now think that they are not at all controlling, we might properly refuse to notice the argument based upon them. But, inasmuch as counsel insists we have gone counter to our own prior decisions, and therefore have introduced a confusion into the law of the state, we have thought best to refer to them in this supplemental opinion.
In the Pinkney Case there was an appeal by defendant from a decree of divorce granted by default, and one of several grounds of reversal was that the petition was not sufficient, because in alleging willful absence of defendant as a ground of divorce it was not stated that such absense was without sufficient cause. The court says this omission is fatal, and in other similar respects the petition is held to be fatally defective. But it is not intimated in the opinion that the decree was on that account void and would be subject to collateral attack. Without doubt, failure of the plaintiff to allege facts, which by statute are required by mandatory provision to be alleged, would be a ground for reversal, even though the defendant has not raised the specific objection; but it does not follow that the decree based on such petition would be absolutely void and subject to collateral attack. In the Lyster Case nothing is said pertinent to the question now before the court, save that the consent of defendant to the granting of the divorce prayed for does not relieve the court from the duty of inquiring into the case for the purpose of determining whether a ground for divorce in fact exists; and in the Inskeep Case it is said, by way of argument, that if anything like collusion appears the court should not...
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State v. District Court of Eighth Jud. Dist.
... ... cases which fails to state a cause of action does not, ... ordinarily, make the judgment void. For instance, it was held ... in Mengel v. Mengel, 145 Iowa 737, 120 N.W. 72, 122 ... N.W. 899, that the absence of an allegation in a divorce ... petition that the petition is made in ... ...
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Richardson v. King
...291, 76 Am. St. Rep. 468;McNary v. Bush, 35 Or. 114, 56 Pac. 646;George v. Nowlan, 38 Or. 537, 64 Pac. 1.” See, also, Mengel v. Mengel, 145 Iowa, 737, 120 N. W. 73, 122 N. W. 899, which is clearly in point. That this proceeding is a collateral attack upon a divorce decree must ever be kept ......
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Western Fruit & Candy Co. v. McFarland
... ... the relief sought was one not covered by the bond ... We find ... nothing relevant in Mengel ... ...
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Mengel v. Mengel
...ago and was disposed of, so far as this court is concerned, by an opinion which will be found reported in 145 Iowa, 737, 120 N. W. 72, 122 N. W. 899. We are informed that that branch of the case is now pending on appeal to the Supreme Court of the United States, and doubtless should take ju......