Semrow v. Semrow

• Decision Date: 11 November 1876
• Citation: 23 Minn. 214
• Parties: ALVINA SEMROW <I>v.</I> JULIUS SEMROW.
• Court: Minnesota Supreme Court

23 Minn. 214

ALVINA SEMROWv.

JULIUS SEMROW.

Supreme Court of Minnesota.

November 11, 1876.

Plaintiff having obtained a judgment against defendant of divorce and for alimony, in the district court for Sibley county, the defendant therefore moved that the judgment be altered by reducing the amount of alimony awarded, and that a mortgage which defendant had given in part-satisfaction of the judgment might be released and delivered up to him, on the ground that it had been obtained from him by duress. The motion was denied by L. M. Brown, J., and the defendant appealed.

Davis, O'Brien & Wilson and F. F. Wilde, for appellant.

S. & O. Kipp, for respondent.

BERRY, J.

Upon the points presented by counsel in this court, this may be taken to be an appeal from the order of the court below refusing to "revise and alter" a judgment for alimony, and refusing to direct the plaintiff to release and deliver up a certain mortgage alleged to have been obtained by duress, in part-satisfaction of such judgment. It is first claimed that the judgment should have been revised and altered on account of errors appearing upon its face, or errors in the proceedings of which it was the result. As with respect to judgments in general, the correction of such errors is to be accomplished either by a motion for a new trial or by appeal. Grant v. Schmidt, 22 Minn. 1. The authority given by Gen. St. c. 62, § 25, to revise and alter a judgment for alimony, is to be exercised only upon new facts occurring after the judgment, or perhaps, also, upon facts occurring before the judgment, of which a party was excusably ignorant at the time when the judgment was rendered. Perkins v. Perkins, 12 Mich. 456; Blythe v. Blythe, 25 Iowa, 266; Fisher v. Fisher, 32 Iowa, 20; Wilde v. Wilde, 36 Iowa, 319. See, also, Graves v. Graves, 108 Mass. 314.

In this case there was no fact existing at the time of the rendition of the judgment, and bearing upon the matter of alimony, of which defendant was excusably ignorant. The only new fact insisted upon is the death, since the rendition of the judgment, of a child of the parties thereto, the care, custody, and education of which were awarded to plaintiff. But as, by the terms of the judgment, the alimony in question was awarded as "her (the plaintiff's) permanent alimony," and not as an allowance for the child, the fact of the child's death becomes unimportant, since it does not furnish any reason why the amount awarded as her alimony — that is to say,...