Mollring v. Mollring
| Decision Date | 13 May 1918 |
| Docket Number | 30533 |
| Citation | 167 N.W. 524,184 Iowa 464 |
| Parties | LOLITA MOLLRING, Appellant, v. HARRY E. MOLLRING, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED SEPTEMBER 30, 1918.
Appeal from Pottawattamie District Court.--THOMAS ARTHUR, Judge.
THE appellant filed a petition to obtain a divorce. Issue was joined upon this. Defendant also filed cross-petition setting up that a court of competent jurisdiction in Missouri had divorced him from this plaintiff. In the cross-petition he prayed that he be awarded the custody of the minor child of the parties. At the close of all the evidence, the plaintiff and appellant attempted to dismiss her divorce suit without prejudice. The trial court declined to permit this holding that the dismissal came too late, because the cause had been finally submitted. Thereupon, it dismissed the petition of the plaintiff, and awarded the custody of said child to the defendant. The plaintiff appeals.
Affirmed.
John P. Organ, for appellant.
Tinley, Mitchell & Pryor, for appellee.
The appellant asks us to determine whether her petition was rightfully dismissed upon the merits. This we may do only if appellant presents a final judgment for our action. She is in no position to claim that there is a final judgment dismissing her petition; for she urges that we should reverse the trial court for holding that she had not dismissed her divorce suit without prejudice. Now, her claim that she did so dismiss is, of necessity, a concession by her that the divorce suit has not been finally determined. All will agree that, if the claim that there was a dismissal without prejudice should now be sustained, there would be no final judgment here to review. The existence of final decree is jurisdictional, and whoever contends here that a suit was dismissed without prejudice, admits there is no right to review on the merits. One may not say to an appellate court in the same suit that there is and that there is not a final judgment. We held, in Sloanaker v. Howerton, 182 Iowa 487, 166 N.W. 78, that an appellant may not, in the same litigation, take the position that a reply states no facts sufficient to constitute a counter-claim, and also assert rights based upon a claim that such pleading is a counterclaim. And see Kearney M. & E. Co. v. Union Pac. R. Co., 97 Iowa 719, 66 N.W. 1059; Touhey v. Cooney, 183 Iowa 1023, 166 N.W. 684. Nor does it matter that elements vital to an estoppel in pais are lacking, or that the taking of the contradictory positions has worked no prejudice, or that this appellant was unsuccessful in her claim to the lower court that she had dismissed without prejudice. See the Kearney case, supra, and the following authorities, cited therein with approval: Van Winkle v. Crowell, 146 U.S. 42 (13 S.Ct. 18, 36 L.Ed. 880); Lehman, Durr & Co. v. Van Winkle, 92 Ala. 443 (8 So. 870); Bulkley v. Morgan, 46 Conn. 393; Bigelow on Estoppel (5th Ed.) 673; Nield v. Burton, 49 Mich. 53 (12 N.W. 906); Terry v. Munger, 121 N.Y. 161 (24 N.E. 272); Herman on Estoppel, Sections 1045, 1051.
The abstract recites an entry that the cause was submitted on a day stated. It discloses further that, at the time this entry was made, or immediately thereafter, the trial judge stated he had not yet made up his mind on the law with reference to awarding custody of the child; that he would not make a decision of the entire case now, because he desired to examine some authorities cited on that question; but that he was prepared to say at this time what his views on the facts were. He then proceeded to state, in effect, that plaintiff had failed to sustain her petition, both in corroboration and because of the residence of the parties. Later than this, and before entry of final decree, the appellee asked permission to offer additional testimony on the question of custody, and it was ordered that such testimony should be heard. Thereupon, each of the parties offered further testimony on that question; and it was when this testimony was closed that counsel for plaintiff attempted to dismiss the divorce suit without prejudice, with the statement that he did this because he had some question as to the sufficiency of the corroboration. We are of opinion that the dismissal was in time, and that the court should have refrained from entering final judgment on the divorce petition. Before plaintiff attempted to dismiss without prejudice, the case had been reopened, but, to be sure, for the avowed purpose of taking testimony on the question of custody only. Notwithstanding this limitation, it is manifest that, when both parties adduced testimony on who should have the custody, it must have been anticipated that such testimony might bear on whether plaintiff was entitled to a divorce. In trying out which of the parties was the proper custodian, a third person might have testified that the defendant had been guilty of adultery. This would have been relevant to whether he was a proper custodian, and, if put in without objection, would have been direct support of a claim which was made a ground for seeking divorce. In one word the re-opening of the case for taking this testimony was a sufficient re-opening to avoid final submission, and it follows that the application to dismiss without prejudice came in time.
III. But we think the error in holding that the dismissal came too late and in entering final judgment was without prejudice. The defendant had interposed a decree showing that a court of competent jurisdiction had, on his application, divorced him from the plaintiff. The plaintiff made certain attacks upon this decree. Notwithstanding, the trial court held that such decree was valid and effective. An examination of the evidence persuades us that this is a correct conclusion. The parties tried out the validity of said decree. A rightful determination that the parties were already divorced established that fact for and against either of the parties in any future litigation between them in which the validity of this decree was material. Smith v. Cretors, 181 Iowa 189, 164 N.W. 338.
The error of the trial court, then, deprived the plaintiff of nothing except prevailing in a subsequent suit for divorce brought by her. But since our affirmance of the validity of the earlier decree for divorce precludes any possibility of success should plaintiff again sue for divorce, the refusal to let her dismiss without prejudice did her no injury. It is not a prejudicial error to deprive a party of the right to institute suits that can by no possibility be successful.
IV. The cross-petition which asserted a decree of a court of competent jurisdiction divorcing the parties had a further provision awarding the custody of this child to this defendant. When this decree was entered, neither the plaintiff nor the child was within the jurisdiction of the court. So far as the award of custody is concerned, the decree is of no effect for want of jurisdiction. Kline v. Kline, 57 Iowa 386, 10 N.W. 825. Indeed, as we understand it, appellee concedes as much, and in his cross bill tenders the question of who is the proper custodian of this child as an open question; and his claim is that this question, too, was tried out, and that the evidence justifies the action of the trial court in awarding the custody to the defendant. And we are of opinion that the evidence sustains the finding below.
V. But appellant says the trial court had no jurisdiction to award the custody, because no divorce was granted to either party. She bottoms this claim upon the provisions of Section 3180 of the Code, that:
"When a divorce is decreed, the court may make such order in relation to the children * * * as shall be right."
She paraphrases the words "when a divorce is decreed, the court may make such orders," into a statute declaration that such orders may be made only if a divorce is decreed. The exact question at this point is whether, where there is a cross-petition asking affirmative relief as to custody, this statute provision works that there is no jurisdiction to make custodial orders if divorce is denied. This question might well have been determined in Garrett v. Garrett, 114 Iowa 439, 87 N.W. 282, but it was not done; and a reversal in it ensued because it was held the evidence did not justify the order made. Nor is this question resolved by other cases upon which appellee relies. The thing decided in Knoll v. Knoll, 114 La. 703 (38 So. 523), and Hoskins v. Hoskins, (Ky.) 89 S.W. 478, is that the award of custody is justified by the evidence. So of Luck v. Luck, 92 Cal. 653 (28 P. 787),--in which, moreover, it appears affirmatively that no question of statute is involved. So in Power v. Power, 65 N.J.Eq. 93 (55 A. 111, 114). And in Defee v. Defee, (Tex.) 51 S.W. 274, the statute expressly permits such order though divorce be denied. That is the situation in Cornelius v. Cornelius, 31 Ala. 479. In Bryan v. Bryan, 34 Ala. 516, it is decided that the chancery court has jurisdiction over the custody of minor children, independent of the statute. But this still leaves open the question whether it has such jurisdiction despite statute. In effect, the case holds that custody may be awarded though no divorce be granted, provided no statute denies the right to make such order.
Now, in the last analysis, the position of appellee is that notwithstanding this statute, the case is controlled by certain powers inherent in the chancery court, and the rule that, when equity once takes hold, it may go to the end, though in the end it award nothing but relief due at law. ...
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