Svoboda v. Svoboda
Decision Date | 17 November 1953 |
Docket Number | No. 48337,48337 |
Citation | 60 N.W.2d 859,245 Iowa 111 |
Parties | SVOBODA v. SVOBODA. |
Court | Iowa Supreme Court |
L. M. Hullinger, James H. Smith and L. M. Hullinger, Jr., Cedar Rapids, for appellant.
Edgar L. King, Cedar Rapids, for appellee.
Bessie and Joseph C. Svoboda were married August 1, 1929, and the marital relation continued until shortly before October 31, 1951, when plaintiff filed petition for divorce and the custody of their two sons, aged about fifteen and eleven years. Plaintiff also prayed for support for the two children, title to all property of the parties and for general equitable relief. The alleged grounds for divorce were cruel and inhuman treatment endangering her health and life, and including drinking to excess, and using vile language toward her. The original notice was personally served on the defendant on November 2, 1951. He filed no answer or other pleading and appeared neither personally nor by any attorney or other person. For this lack of appearance, on November 30, 1951, defendant was declared to be in default, and decree was that day rendered and duly entered in favor of plaintiff. The decree stated that: the court after examination of the original notice and the return of service endorsed thereon found that defendant had been duly and personally served with notice as provided by law; and, plaintiff appeared in person and by attorney, and the court being fully advised by the pleadings and proof found and decreed that plaintiff was entitled to a decree of divorce and for such other relief as prayed for in her petition, other than defendant's clothing and personal effects and an automobile which were awarded to defendant.
On December 5, 1951, defendant, Joseph C. Svoboda, filed a motion, pursuant to Rule 236 of the Iowa Rules of Civil Procedure, 58 I.C.A., to set aside the default and decree, upon grounds of mistake, inadvertence, surprise, excusable neglect and for fraud and deceit practiced on the court and upon defendant, by the plaintiff. Defendant also alleged that: on November 3, 1951 he employed and consulted attorney L. M. Hullinger, Sr., and was by him advised that he had a good defense to his wife's action, and said attorney was instructed to do all things necessary in defendant's behalf; within a few days thereafter defendant and his wife agreed to a reconciliation, and at once commenced to live together and cohabit as husband and wife, and continued to do so thereafter up to and including the date of the rendition of the decree and the date of filing the motion; defendant informed his attorney of the reconciliation and the resumption of marital relations, and that it would not be necessary for the attorney to further act or proceed with the defense in the divorce proceeding; and thereafter plaintiff by deceit and fraud practiced on the defendant and the court procured the default to be declared and the decree to be rendered, without opportunity on the part of defendant to defend and to present the meritorious and sufficient legal defense which he had to plaintiff's alleged cause of action. With this motion defendant filed an answer to plaintiff's petition in the divorce suit.
On December 10, 1951 plaintiff filed a resistance to said motion denying the allegations thereof and alleging that defendant had personal knowledge of every stage of the divorce proceeding, and on the day before the decree was entered, the defendant had urged her to go ahead and get the divorce. On December 12, 1951, defendant filed a reply denying the affirmative allegations of the resistance.
On December 29, 1951, hearing was had upon the motion to set aside the resistance. Defendant testified in support of the allegations of his motion and reply to the resistance. He testified that: he and his wife together, owned a home, worth about $8,000 incumbered by a $4,200 mortgage and a tavern worth about $8,000 for which an offer of purchase for $5,600 had been made and withdrawn, and another party had offered $4,500. When asked if he received any papers from his wife or her attorney, or the court, he answered: Defendant also testified that he first consulted his attorney, Mr. Hullinger, Sr., about three days after November 2, 1951, the date the original notice was served on him and the second time he talked to him was about twenty days later when he told Mr. Hullinger that he would let the case go as his wife was going to drop it. He testified that on this call upon his attorney he paid him. The attorney's receipts show the payments were made to him on December 3 and 4, 1951.
Mr. Hullinger, Sr. corroborated defendant with respect to his employment as attorney and that he took no action in his behalf, because a few days after his employment defendant told him he and his wife were going back together, and he need not defend any further. Defendant introduced no other testimony at this hearing.
Plaintiff testified that: she lived at 1309 C. Street S.W., Cedar Rapids, with her two sons, and that after she filed her petition in the divorce action she did not cohabit with her husband, and never had any talk with him to the effect that they would go back together as husband and wife, or that there would be any reconciliation, and that she had not slept with her husband for over a year; she had been taking care of her sons and providing for their needs, and also operating the tavern, because her husband wasn't able to do so as he was an alcoholic, a matter over which they had quarreled for years, and for which he entered a hospital for treatment; the home was mortgaged to buy the tavern; he had not been paying any support for the children. It was provided in the decree that defendant pay the plaintiff $7.50 a week for each child until they reached their majority. She testified that after she had paid the tavern bills from money in the cash register, defendant, accused her in front of the customers of robbing him again;
Plaintiff was corroborated by the witnesses, Mrs. Rogers and Mrs. King, who were respectively cook and waitress in the Svoboda tavern in November 1951, and before and after said month. They heard the conversation between Mr. and Mrs. Svoboda, the day before November 30, 1951, when the decree of divorce was granted, and heard Mrs. Svoboda tell her husband she was going to get the decree, and heard him reply and tell her to do so, as he didn't care. One of these ladies testified that on this day she heard Mrs. Svoboda telephone her attorney that she would arrange to be at the court house the next day.
The eldest son of the parties also corroborated his mother with respect to the separate bedrooms in which his father and mother slept after the petition for divorce was filed.
It was alleged in defendant's motion that he was then filing an answer in the divorce suit, and that he was going to file a cross-petition for divorce.
When plaintiff announced that she had rested, the Court stated: After stating to Mr. Hullinger, Sr. that the original of any answer he had filed had not been found, and Mr. King had stated that he had a copy in his office, the Court continued: 'Well, I will make a ruling, but I will defer the ruling hoping you gentlemen can see a way to get together, because this is going to result evidently in a divorce.' The hearing was closed December 29, 1951.
The defendant, Joseph C. Svoboda died February 6, 1952. On July 1, 1952, Loren M. Mullinger, Jr.--son of L. M. Hullinger, Sr.--administrator of the estate of the deceased defendant--filed an amendment to the motion to set aside the default and decree, which alleged only his appointment as administrator, and prayed that he be substituted as party defendant to act for and on behalf of defendant's cause and for all matters in connection therewith, and that the court rule upon and sustain the motion to set aside the default and decree.
Hearing on the motion as amended was had on July 11, 1952. At this time plaintiff orally objected to the substitution of the administrator as a defendant in the divorce suit because a showing would be made that the deceased had no property rights at his death on which administration could be granted.
As a witness for defendant, the administrator disclosed that he had no knowledge of defendant's property rights, if any, other than appeared in plaintiff's petition.
Plaintiff testified on July 11, 1952 that at the time of the divorce they owned the home on C. Street S. W., 'there was no other real estate. * * * I acquired the real estate at the time we bought it. I had been saving money from work. Both our names were on the abstract as joint tenants. * * * I worked and all of my money went for payments on the house. I had to cash in my...
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