Richardson v. King
| Decision Date | 05 April 1912 |
| Citation | 135 N.W. 640,157 Iowa 287 |
| Parties | EVALINE RICHARDSON, JOHN W. KING, OLIVE J. FOSTER, ORVILLE J. KING, LULU MURPHEY, Appellants, v. LILLIA C. KING, Appellee |
| Court | Iowa Supreme Court |
Appeal from Fayette District Court.--HON. L. E. FELLOWS, Judge.
SUIT in equity to set aside a decree of divorce secured by defendant against one Wyman Luther, and to determine the interests of the plaintiffs in some real estate in Buchanan County, Iowa. The trial court dismissed the petition, and plaintiffs appeal.
Affirmed.
Loren Risk and Barr & Kenyon, for appellants.
J. R Bane, for appellee.
Plaintiffs are the heirs at law of Chas. W. King, deceased, who died seised of the real estate in dispute. Defendant was married to Chas. W. King, and if she be his widow, she is entitled to share in his real estate. Plaintiffs claim that she is not his widow for the reason that, before marrying King, she had been married to Wyman Luther, from whom she was never legally divorced. It is admitted, however, that defendant brought an action for divorce against Luther, and that a decree was rendered granting the prayer of the petition; but it is contended that the decree is not binding because of defects in the proceedings, and that the court rendering it was without jurisdiction. The defects in the divorce proceedings as shown by the record, are these:
I. The original notice of the divorce proceedings indicated that action was brought by Lillia Lother v. William Lother, and the petition filed named the plaintiff as Lillia Lather and the defendant as Wyman Lather. The testimony taken by a commissioner appointed by the court, defendant not appearing, was in an action entitled Lillia Luther v. Wyman Luther, and the final decree was entered in a case entitled in the same manner. Luther entered his appearance to the action, and in an answer entitled as in the case of Lillia Luther v. Wyman Luther, practically denied each and every allegation of the petition. Upon the testimony reported by the commissioner decree was duly entered of record on November 26, 1906, in a case properly entitled. The original notice was personally served upon Wyman Luther in the city of Oelwein in Fayette county, Iowa. The decree recites that defendant appeared by attorney at the hearing, and that, after hearing the evidence and the arguments of counsel, the court found: "That the parties were married near Arlington, Fayette county, Iowa March 26, 1879; that since said marriage, about the year 1902, the defendant Wyman Luther wilfully deserted plaintiff, Lillia Luther, and has ever since absented himself without a reasonable cause for the period of over two years, and that plaintiff is entitled to a divorce from him." The decree itself was in the following language: "It is therefore considered by the court and ordered and adjudged and decreed that the plaintiff be divorced from the defendant, and that the bonds of matrimony existing between the plaintiff, Lillia Luther, and the defendant, Wyman Luther, be dissolved, and that the plaintiff have judgment against the defendant for costs of this action, hereby taxed at $ 10.40, which costs are paid by the defendant." After entry of this decree, and on or about December 22, 1907, Lillia Luther was married to Chas. W. King. King died intestate March 27, 1910. The contention made by plaintiffs here is that, because of the mistake in the names of the parties as heretofore noted, the decree is invalid and the marriage to King illegal and void. The mistake, if any, in the notice, was cured by Luther's appearance, and, although the petition was entitled Lillia Lather v. Wyman Lather, the defendant therein appeared in his true name and filed an answer in the case which was properly entitled. The testimony was taken in a case properly entitled, and the final decree correctly named the parties. As the final decree which properly named the parties recites that defendant appeared by attorney, the defects in the prior papers were waived and in order to support the jurisdiction it will be presumed, if that be necessary, that the errors in name were corrected by amendment or otherwise before final decree was entered.
Aside from this, we do not think the error in name sufficient to justify a court in ignoring a decree properly entered. See, as supporting this view, Simons v. Marshall, 3 Greene 502; Griffith v. Harvester Co., 92 Iowa 634, 61 N.W. 243; Loser v. Bank, 149 Iowa 672, 128 N.W. 1101.
II. The only other point relied upon is the insufficiency of the petition upon which the divorce was granted. The sections of the Code material to this inquiry read as follows:
Except where the defendant is a resident of this state, served by personal service, the petition for divorce, in addition to the facts on account of which the plaintiff claims the relief sought, must state that the plaintiff has been for the last year a resident of the state, specifying the township and county in which he or she has resided, and the length of such residence therein after deducting all absences from the state; that it has been in good faith and not for the purpose of obtaining a divorce only; and in all cases it must be alleged that the application is made in good faith and for the purpose set forth in the petition. (Code, section 3172).
The petition must be verified by the plaintiff and its allegations established by competent evidence. If the averments as to residence are not fully proved, the hearing shall proceed no further, and the action be dismissed by the court; and no divorce shall be granted on the testimony of the plaintiff alone. All such actions shall be heard in open court upon the oral testimony of witnesses, or depositions taken as in other equitable actions or by a commissioner appointed by the court. (Code, section 3173).
The petition filed in the divorce case, so far as material, reads as follows:
Par. 1. Plaintiff alleges that on the 26th day of March, 1879, the plaintiff and defendant were married near Arlington, Fayette county, Iowa and have ever since been and now are husband and wife. Par. 2. That the parties have lived in Fayette county, Iowa most of their lives since said marriage except when defendant was absent in Dakota. That both parties are now in said Fayette county, Iowa. . . . Par. 4. That the defendant, disregarding his marriage vows, did about the year 1902 wilfully desert the plaintiff and absent himself without a reasonable cause for the space of over two years and has failed and refused to support her. Par. 5. Plaintiff further alleges that, since and after said marriage, the defendant became addicted to habitual drunkenness and neglected his family. Par. 6. That the plaintiff has no property of her own and has to rely upon her labor for her support.
It will be noticed that the residence of each of the parties is imperfectly stated, and there is no allegation that "the application was made in good faith and for the purpose set forth in the petition." Defendant was personally served with notice of the action in Fayette county, and he appeared and filed answer; his answer admitting all the allegations of the petition except those contained in paragraphs 4, 5, and 6. The testimony adduced before the commissioner, which was reported to the court, showed the following:
Mrs. Luther testified:
My name is Lillia Luther, aged 42; reside in Putnam township, Fayette county, Iowa. I was married to the defendant March 26, 1879, near Arlington, Fayette county, Iowa. We have lived in Fayette county most of the time ever since with some few exceptions. . . . He (defendant) never owned a farm, never accumulated any property, and we drifted from place to place until about the spring of 1904, when we were living about 1 1/2 miles from Oelwein, Iowa. . . . I am now working for a farmer and family, caring for their house, on a farm in Putnam township, Fayette county, Iowa and have been there since March, 1906.
Another witness testified: "I have known plaintiff quite intimately since March, 1904, and know of my own personal knowledge that she has kept house and worked by the week for other parties for her support and maintenance."
And still another, a daughter of the parties:
About the time the defendant left my mother for good, he came home on one occasion intoxicated and said he wouldn't sleep in the house because mama was there. At that time my husband and I were working for the owner of this farm on which we now reside. That prior to this time my father and mother had been working on this farm for the owner, but on account of the defendant's indolence and negligence the owner of the farm wouldn't let him have it any longer. During the winter of 1903 and 1904, my mother was with me and my father, the defendant, also. I heard the defendant just prior to the time he left frequently swear at my mother. . . . The defendant did leave my mother early in March, 1904, without any cause on her part, and has absented himself ever since. That since that time my mother has been obliged to work out by the week and support and provide for herself. That I know she has done this of my own personal knowledge, and I know that my father has refused to live with her and has not lived or cohabited with her since that, early in March, 1904. My mother has always had the care of the family upon her. She has been kind and attentive to the children. She has been economical and industrious and never gave my father any cause for leaving. She is now working for a farmer and his family. I think it is in Putnam township, Fayette county, Iowa.
Upon the trial of the instant case in January, 1911, plaintiff in the divorce case, defendant here, testified:
Q. State when and where you were married to Wyman Luther? A. Well, near...
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