Priestman v. Priestman

• Decision Date: 19 October 1897
• Citation: 103 Iowa 320,72 N.W. 535
• Parties: PRIESTMAN v. PRIESTMAN.
• Court: Iowa Supreme Court

103 Iowa 320

72 N.W. 535

PRIESTMAN

v.PRIESTMAN.

Supreme Court of Iowa.

Oct. 19, 1897.

Appeal from district court, Page county; Walter I. Smith, Judge.

August 30, 1894, defendant obtained a decree of divorce from the plaintiff, in an action wherein he charged her with desertion and adultery.Original notice in that case was served by publication.This is a suit to set aside that decree, and for a new trial, based upon the grounds that the allegations in the petition in the original action that plaintiff had deserted defendant were untrue; that the alleged adultery had been condoned; that the affidavit of nonresidence was not filed until after the notice had been published for three consecutive weeks; that the publication was made in an obscure paper, published many miles from the place of defendant's residence, with intent that plaintiff should not learn it; that the decree was obtained through fraud and perjury practiced by defendant; and that plaintiff has at all times been a resident of Page county, Iowa, and was at the time the notice was served, of which fact defendant was aware when he caused the notice to be published.The trial court dismissed the plaintiff's petition, and she appeals.Reversed.G. I. Miller and C. S. Keenan, for appellant.

W. P. Ferguson, for appellee.

DEEMER, J.

Two claims are made in the petition.One is that the court was without jurisdiction to render the original decree, and the other is that the decree was obtained through perjury and fraud; and a new trial is asked under the provisions of Code 1873, § 3154, which authorizes the vacation or modification of a judgment for irregularity or for fraud practiced by the successful party in obtaining it.This action was brought on the 15th day of August, 1895.The Code of 1873 provides that proceedings to vacate a judgment because of irregularity in obtaining it must be by motion made on the second day of the next succeeding term.There was a term of the district court held in Page county in January, 1895, and another in April.As no motion was filed as required by the statute, we cannot consider plaintiff's claim of irregularity in the obtaining of the judgment.The Code of 1873 also provides that proceedings to obtain a new trial for fraud practiced by the successful party in obtaining the judgment shall be by petition setting forth the facts, and commenced within one year after the judgment or order was made.The application to vacate on the ground of irregularity cannot be considered, because not made in time.In so far as it is a petition to set aside the judgment because of want of jurisdiction, and to vacate it because of fraud of the successful party, it is timely, and may be considered.The evidence establishes without dispute that the affidavit of nonresidence was not filed until there had been three issues of the paper in which the notice was published.The first publication was July 20th, and the last August 10th.The affidavit was filed August 4th of the same year.The statutes with reference to such matters are as follows: Code 1873, § 2618: “Service may be made by publication when an affidavit is filed that personal service cannot be made on the defendant within this state * * * where the action is for a divorce, if the defendant is a nonresident of the state, or his residence is unknown.”Section 2620 provides that, “when the foregoing provisions have been complied with, the defendant, so notified, shall be required to appear as if personally served within the county in which the petition is filed on the day of the last publication.”It has frequently been held that the requirements of the statute as to constructive service must be strictly followed and literally complied with.Abell v. Cross, 17 Iowa, 174;Tunis v. Withrow, 10 Iowa, 305;Broghill v. Lash, 3 G. Greene, 357;Smith v. Smith, 4 G. Greene, 266;Pinkney v. Pinkney, Id. 324.Applying...