Phelan v. Johnson

• Decision Date: 04 June 1890
• Parties: PHELAN v. JOHNSON, JUDGE.
• Court: Iowa Supreme Court

80 Iowa 727

46 N.W. 68

PHELAN

v.JOHNSON, JUDGE.

Supreme Court of Iowa.

June 4, 1890.

Certiorari.

Phillips & Day, for plaintiff.

Cole, McVey & Clark, for defendants.

BECK, J.

1. The petition alleges that plaintiff recovered a judgment in the supreme court against Michael Phelan, as principal, and Daniel Phelan, the surety, on the supersedeas bond upon which an execution was issued to the sheriff of Jasper county for the collection of the judgment, and that, upon the petition of Daniel Phelan, filed in the office of the clerk of the district court of Jasper county, the Hon. J. K. JOHNSON, one of the judges of the sixth judicial district, allowed an injunction, which was issued, restraining the sheriff, who was, with plaintiff herein, made a defendant, from enforcing the execution. The petition alleges that, in the allowance of the injunction, Judge JOHNSON exceeded his jurisdiction, and acted illegally.

The return to the writ of certiorari, as the only grounds for the exercise of jurisdiction in allowing the injunction, sets out in full the petition upon which it was allowed, the material allegations whereof are in the following language: “Par. 2. The plaintiff avers the fact to be that in truth there is no valid judgment existing against this plaintiff in favor of the said Mary Ann Phelan; that this plaintiff was no party to the suit between Mary Ann Phelan and Michael Phelan, and was never served with any notice of the pendency of the action in favor of said Mary Ann Phelan, either in the district court of Polk county, Iowa, where the suit originated, or in the supreme court of the state of Iowa, or in any other court; that this plaintiff has never had any notice whatever of any such suit in either of said courts, nor has he had any opportunity to defend against the same; that said judgment is void for want of jurisdiction; that said judgment purports to have been rendered on or about the 11th day of February, 1890. Par. 3. That long prior to the date of said judgment the case of Mary Ann Phelan v. Michael Phelan was pending on appeal in the supreme court of Iowa, and that long prior to said judgment the appellant dismissed said appeal, and that there was no case in the supreme court at the time said judgment was rendered, and there was no jurisdiction over said defendant. Neither had the court any jurisdiction in said cause at the time such pretended judgment was rendered by said court. Par. 4. The plaintiff further avers that at the April term of the district court of Polk county, Iowa, 1889, there was pending the original case, herein referred to, of Mary Ann Phelan v. Michael Phelan, the same being a suit for divorce and alimony; that at said term the district court awarded temporary alimony in favor of Mary Ann Phelan in the sum of about $250, with $20 per month additional. From said judgment an appeal was taken by the said Michael Phelan in the supreme court of Iowa, but no supersedeas bond was given, and said judgment was not superseded. Par. 5. The plaintiff charges the fact to be that said suit is collusive and fraudulent, and that said judgment was obtained by fraud on the part of the said Mary Ann Phelan, defendant herein, and that said pretended judgment referred to in the first paragraph of this petition is pretended to be based upon said judgment so rendered by the district court of Polk county, Iowa, in the suit of Mary Ann Phelan v. Michael Phelan, herein referred to. The plaintiff says that the said Mary Ann Phelan is a Catholic, and a communicant of the Catholic Church, in regular attendance upon all its services and masses, and pretends to be a devout Catholic; that, by the rules and regulations of said church, the communicants therein are absolutely prohibited, under severe penalty of excommunication, from bringing suit for divorce or alimony, and that the case above referred to of Phelan v. Phelan was brought for an absolute divorce, with all the allegations required by statute for a divorce, and that the alimony so granted was in contemplation of said divorce, and that such divorce proceedings be prosecuted to final judgment. Plaintiff avers that he did not then know of the fraudulent character of said suit, but he has since learned that the said suit was not brought in good faith; that said judgment was not obtained in good faith, and that said Mary Ann Phelan, and her agents and advisers, have frequently, since the obtaining of said judgment, given out and stated to divers and sundry persons that she did not intend to prosecute said suit to final judgment, that she did not intend to procure a divorce from said Michael Phelan, and that she would eventually dismiss said suit, and...