Rodman v. Rodman, No. 5773.

• Court: Supreme Court of South Dakota
• Writing for the Court: BROWN
• Citation: 217 N.W. 507,52 S.D. 339
• Parties: RODMAN v. RODMAN.
• Decision Date: 16 January 1928
• Docket Number: No. 5773.

52 S.D. 339
217 N.W. 507

RODMAN
v.
RODMAN.

No. 5773.

Supreme Court of South Dakota.

Jan. 16, 1928.

Appeal from Circuit Court, Jerauld County; Frank B. Smith, Judge.

Action for divorce by Mary N. Rodman against Frank L. Rodman, in which defendant filed a counterclaim. Divorce was granted on the counterclaim, and from a supplemental decree regarding property and an order denying an application to set it aside, defendant appeals. Affirmed.

[217 N.W. 507]

E. C. Sigler and E. B. Skinner, both of Sioux Falls, for appellant.

Null & Royhl, of Huron, for respondent.

BROWN, J.

In this action for divorce on the ground of cruelty the defendant counterclaimed for a divorce on the ground of desertion. Divorce was granted on the counterclaim.

By the terms of the judgment, which was dated November 16, 1922, a residence property in the town of Alpena was “assigned to and vested in Mary N. Rodman, *** same to be the property of said Mary N. Rodman, free and clear as to any claims of the defendant, Frank L. Rodman.”

[217 N.W. 508]

By amendment dated December 13, 1922, the judgment was amended as to this property so as to assign the same to Mary N. Rodman “free and clear as to any claim of the defendant, Frank L. Rodman,” with a provision that Mary N. Rodman should not sell, mortgage, or incumber the property without a written order of the court therefor.

On November 7, 1923, another amendment was made to the judgment whereby this residence property was assigned to and vested in Mary N. Rodman “to be used as a home for herself and children living with her so long as such children, or any of them, shall live and make their home with said plaintiff; except and provided that the said plaintiff, Mary N. Rodman, shall not sell, mortgage, or incumber the above-described property except with the permission of this court and upon its duly written order therefor.”

It appears from the record that this last amendment was made by the court of its own motion, at the time of hearing a motion for a new trial, and when the attorneys for the respective parties were present. On March 25, 1924, the court on the application of plaintiff and without notice to defendant's attorney again amended the judgment or decree in so far as it related to this residence property, so as to read that “the same is hereby assigned to and vested in the said plaintiff, Mary N. Rodman, the same to be the sole property of said Mary N. Rodman, free and clear as to any claims of the defendant, Frank L. Rodman.”

...