Swift v. Swift
| Decision Date | 11 November 1947 |
| Docket Number | 47148. |
| Citation | 29 N.W.2d 535,239 Iowa 62 |
| Parties | SWIFT v. SWIFT. |
| Court | Iowa Supreme Court |
Rehearing Denied Jan. 16, 1948.
Louis J. Kehoe, S.W. Livingston, and Robert Day, all of Washington, for appellant.
Paul V. Shearer and Baldrige & Bailey, all of Washington, for appellee.
The principal questions presented are whether a decree of divorce granted plaintiff on August 30, 1946, is void because defendant was not legally served with original notice and, if void, whether defendant is barred by laches or estoppel from challenging the decree.
The record discloses extreme carelessness on the part of plaintiff's attorney Louis J. Kehoe. Also a violation by him of professional ethics in testifying on a vital matter at the hearing which led to this appeal without withdrawing as an attorney although plaintiff was well represented at such hearing by other counsel. See Cuvelier v. Town of Dumont, 221 Iowa 1016 1020, 1021, 266 N.W. 517, and cases cited; Anno. 118 A.L.R 954.
Plaintiff Hattie L. Swift (now Hattie L. Cuddeback) and defendant Thos O. Swift were married in 1921. They have four children. The youngest is 18. About June 3, 1946, defendant left Washington, Iowa, where the parties lived and went to Kansas with his truck. Plaintiff did not hear from him until he telegraphed her on August 1, 1946. In the meantime, on July 5, plaintiff had gone to Mr. Kehoe's office regarding a divorce. On that day Kehoe prepared and filed a petition for divorce and also prepared an affidavit that personal service of original notice could not be had on defendant in Iowa. The affidavit was not filed until April 25, 1947, after defendant moved to set aside the divorce decree. Original notice was published on July 6, 13 and 20 in a newspaper of general circulation in the county where the petition was filed, and sworn proof of publication filed before default was taken. See rules 62, 63--all references to rules are to Rules of Civil Procedure.
On August 1, 1946, defendant sent plaintiff by telegraph from Goodland, Kansas, $150 to be paid upon indebtedness contracted by him for which plaintiff was also liable. The next day plaintiff showed the telegram, which revealed defendant's whereabouts, to Mr. Kehoe who advised serving defendant personally with notice of the divorce suit. Kehoe thereupon dictated an original notice and a letter to the sheriff at Goodland, Kansas, directing him to serve the notice upon defendant. The letter and notice, with copy of petition attached, were inclosed in an envelope addressed to the sheriff at Goodland and deposited in the mails on August 2.
When the notice was sent back to Kehoe by the sheriff at Goodland, the return of service upon the notice recited it was received on September 3, 1946, and service was made on September 9. The return was dated September 10. In the meantime plaintiff had procured her divorce decree on August 30. Kehoe never filed the notice sent to Kansas and returned to him showing service on September 9.
On March 24, 1947, defendant filed a petition in equity to set aside the divorce decree on the ground original notice was not legally served upon him. On April 18 he withdrew this petition and filed in the divorce suit a motion to set aside the decree on the same ground. In the meantime, on March 11, 1947, in Missouri, plaintiff had married one Cuddeback with whom she commenced to keep company in the late all of 1946. When defendant filed his petition to set aside the decree, Kehoe belatedly discovered the affidavit for service of notice by publication had not been filed and that the notice which had been sent to Kansas showed defendant had been served ten days after the divorce decree was granted.
Mr. Kehoe then entrained for Goodland, Kansas, where, with the aid of his office copy of his letter of August 2 to the sheriff and because of the fact the decree was entered on August 30, Kehoe convinced the sheriff he in fact received the notice for service on defendant on August 3, served it on August 9, 1946 (20 days before the divorce decree was granted--see rule 53), and made his return on August 10. On March 26, 1947, as requested by Kehoe the sheriff signed and swore to a new return of service dated August 10, 1946, showing receipt of the notice on August 3 and service on August 9. This return, placed upon a duplicate notice Kehoe had taken with him to Kansas, was then filed by Kehoe in the divorce proceeding in Washington, Iowa.
When defendant's motion to set aside the decree was heard on May 26, 1947, the sheriff at Goodland had convinced himself his original return stated the true facts and he so testified as a witness for defendant, as did the county attorney who officed next to the sheriff and who typed that return. Whether the notice was served on September 9 as stated in the original return and as contended by defendant, or on August 9 as stated in the belated return and as contended by plaintiff, was vigorously disputed.
Defendant contends the divorce decree was entered without jurisdiction over him because he was not personally served with notice until September 9 and the failure to file the affidavit for publication of notice rendered the published notice a nullity. On the disputed fact question the trial court held with defendant that he was not served in Kansas until ten days after the decree was granted on August 30. He also ruled, as contended by defendant, the published notice was a nullity, there was no jurisdiction over defendant and the divorce decree was void. He also held defendant was not barred by laches or estoppel from challenging the decree.
I. Plaintiff argues in effect that failure to file the affidavit for publication of notice is excused by the admitted fact, shown upon the hearing which led to this appeal, defendant was in Kansas during the pendency of the divorce suit and therefore personal service of notice could not be had on him in Iowa. While of course it is true, as plaintiff suggests, the published notice provided defendant as much information as if the affidavit had been filed, we cannot accept plaintiff's argument.
Rule 60 provides service may be made by publication in divorce and other designated causes 'After filing an affidavit that personal service cannot be had on an adverse party in Iowa.' Filing the affidavit is a condition precedent to the validity of published notice. The affidavit must be filed before the notice is published. A judgment rendered on published notice without an appearance by defendant when the affidavit has not been so filed is void. We conclude the published notice here was insufficient to confer jurisdiction. Priestman v. Priestman, 103 Iowa 320, 323, 72 N.W. 535, and cases cited; Guinn v. Elliott, 123 Iowa 179, 182, 98 N.W. 625; Belknap v. Belknap, 154 Iowa 213, 214, 215, 134 N.W. 734; Carr v. King & Tomlinson, 184 Iowa 734, 737, 169 N.W. 133. See also 42 Am.Jur., Process, section 90; 50 C.J., Process, § 132.
While the cited cases arose under the statutes superseded by rule 60, the rule does not differ materially from the statutes, section 11081, Code 1939, and its predecessors, on the point now considered. Sweeley v. Van Steenburgh, 69 Iowa 696, 26 N.W. 78, upon which plaintiff relies, does not conflict with the decisions cited above. In the Sweeley case the affidavit for publication of notice was filed as required by statute.
II. Plaintiff contends the trial court violated section 683.2, Code 1946, which reads: 'The judgment shall not be vacated on motion or petition until it is adjudged there is a cause of action or defense to the action in which the judgment is rendered.'
This section appears in chapter 683, Code 1946, chapter 552, Code 1939, on procedure to vacate or modify judgments for mistake, neglect or omission of the clerk and on other specified grounds. Defendant did not proceed under these provisions. Nor was he required to do so. They do not relate to the setting aside of a judgment void for want of jurisdiction. If notice was not served upon defendant until September 9, the divorce decree is void and the court could properly set it aside in this proceeding, if plaintiff has not sustained her claim of laches or estoppel, without a showing there is a defense to plaintiff's suit for divorce. Williamson v. Williamson, 179 Iowa 489, 161 N.W. 482; Royer v. Mershon, 184 Iowa 1065, 1068, 169 N.W. 400; Cummings v. Landes, 140 Iowa 80, 87, 117 N.W. 22; Iowa Sav. & Loan Ass'n. v. Chase, 118 Iowa 51, 53, 54, 91 N.W. 807.
The cases just cited were decided before section 12787, Code 1939, section 4091, Code 1897, was superseded by rule 252. However, the rule is quite similar to the statute and we see no reason for rejecting these precedents.
Cases relied on by plaintiff on this proposition are not in point. Thoreson v. Central States Elec. Co., 225 Iowa 1406, 1410, 283 N.W. 253, and cases therein cited involve attempts to vacate or modify a judgment under chapter 552, Code 1939, which contained what is now section 683.2, Code 1946, section 12796, Code 1939, quoted above. Bates v. Ely Tr. & Sav. Bank, 219 Iowa 1356, 261 N.W. 614, and Wade v. Swartzendruber, 206 Iowa 637, 220 N.W. 67, consider attempts to set aside defaults under section 11589, Code 1939, which required an affidavit of merits to be filed. We may observe that section 11589 is now superseded by rule 236 and the requirement of an affidavit of merits has been eliminated from the rule.
III. Upon the reasoning expressed in Division II hereof plaintiff's argument that defendant was required by rule 236 to file his motion within 60 days after entry of the divorce decree is likewise without merit. Rule 236 provides for setting 'aside a default or the judgment thereon, for mistake, inadvertence, suprise, excusable...
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