Schafer v. Schafer

• Decision Date: 21 April 1904
• Docket Number: 13,526
• Parties: ZEBULINE H. SCHAFER, APPELLEE, v. PAUL J. SCHAFER, APPELLANT
• Court: Nebraska Supreme Court

99 N.W. 482

71 Neb. 708

ZEBULINE H. SCHAFER, APPELLEE, v. PAUL J. SCHAFER, APPELLANT

No. 13,526

Supreme Court of Nebraska

April 21, 1904

APPEAL from the district court for Douglas county: GUY R. C. READ JUDGE. Reversed.

REVERSED.

Burkett & Greenlee, for appellant.

Geo. A Magney, contra.

KIRKPATRICK C. DUFFIE and LETTON, CC., concur.

OPINION

KIRKPATRICK, C.

On October 22, 1902, appellee procured to be entered by the district court for Douglas county a decree of divorce in her favor, and against the appellant, awarding to her the custody of their three minor children, and enjoining appellant from in any way interfering with their custody and control. Appellant was a resident of the state of California, and made no appearance in the case until after the decree, service having been made upon him by publication. On the 18th day of August, 1903, appellant filed in the district court a petition asking a new trial under the provisions of section 602 of the code, and that he be allowed to defend. The petition is of too great length to be copied herein, but it sets out facts which, if true, show that appellee was a nonresident of the state at the time she procured her divorce; that her allegation of residence was a fraud upon the court; and that the divorce was obtained upon unlawful, corrupt and perjured testimony of the extremist character, and that appellant had an absolute defense to the cause of action set out in her petition; that appellant had no knowledge of the pendency of the proceedings for nearly a year, and until after the adjournment of the term; that the notice was fraudulently published in an obscure weekly paper in Douglas county, for the purpose of preventing appellant from acquiring knowledge of its pendency; that the next day after the decree was entered, appellee crossed the river into Council Bluffs, Iowa, and there intermarried with one Beck, whose intimacy with appellee, it is alleged, was the cause of the separation of the parties, which occurred in California. Appellant, in his petition, brought himself fully and clearly within the provisions of section 602 of the code, authorizing the granting of new trials after the term at which the decree was rendered.

Appellee contends that, by the provisions of section 45 and 46, chapter 25, Compiled Statutes (Annotated Statutes, 5369, 5370), all divorce proceedings are taken out of the provisions of section 602, and that, in proceedings to vacate or modify a decree of divorce, or to obtain a new trial in a divorce case, except in so far as it affects alimony or the custody of children, they must be brought within 6 months; and that, conceding all that appellant alleges in his petition to be true, and that the divorce was obtained by perjury, and that the court had no jurisdiction, yet, the court is powerless to grant appellant any relief. The doctrine contended for strikes us as monstrous, and we are not inclined to accede to its correctness, unless the language of the statute is such as to make that construction imperative. The act relied upon by appellee in support of her contention was passed in 1885. (Laws, ch. 49.) It is composed of two sections, in the language following:

"Section 1. It shall be unlawful for any person who shall obtain a decree of divorce to marry again during the time allowed by law for commencing proceedings in error or by appeal for the reversal of such decree, and in case such proceedings shall be instituted it shall be unlawful for the defendant in error or appellee to marry again during the pendency of such...