The State v. Whitoomb

• Decision Date: 22 October 1879
• Citation: 2 N.W. 970,52 Iowa 85
• Parties: THE STATE v. WHITOOMB
• Court: Iowa Supreme Court

2 N.W. 970

52 Iowa 85

THE STATE v. WHITOOMB

Supreme Court of Iowa, Des Moines

October 22, 1879

Appeal from Bremer District Court.

THE defendant was convicted of the crime of adultery, and sentenced to confinement in the penitentiary for two years. He now prosecutes this appeal.

AFFIRMED.

A. F Brown and A. T. Cole, for appellant.

J. F McJunkin, Attorney General, for the State.

OPINION

BECK CH. J.

I. The evidence tended to prove that defendant and Roana Whitcomb were married in 1855, and that defendant prosecuted an action for a divorce in the district court of Floyd county, resulting in a decree divorcing the parties, December 4th, 1872. On the 7th day of January, 1873, defendant was married to Rachel Patterson, with whom the crime of adultery is charged to have been committed. November 13th, 1873, Roana Whitcomb filed a petition in the Floyd District Court to set aside and annul the decree of divorce on the ground that it was procured by the fraud of defendant. The venue of this case was changed to Chickasaw county, and the decree of divorce was by proper decree, upon a trial, set aside and declared void on account of the fraud of defendant practiced in procuring it. The cause was brought upon appeal to this court, and the judgment of the District Court was here affirmed. See 46 Iowa 437.

The evidence introduced establishes the marriage of defendant and Roana. The defendant relied upon the divorce obtained by him as a defense to the indictment. The court instructed the jury as to this defense, in the following language:

"7. The defendant has offered in evidence a decree of divorce granted to him by the court in Floyd county, and to rebut this the State has introduced in evidence a further decree in that case rendered by the court of Chickasaw county, which adjudges that the decree rendered by the court of Floyd county was without jurisdiction and was obtained by the fraud of this defendant perpetrated in that case. The effect of the judgment and decree in the District Court of Chickasaw county is to set aside the decree rendered in Floyd county and after the judgment was entered in the case in Chickasaw county, the other decree was no longer of any validity and is no defense for the defendant for any unlawful act of his committed since that time; and if you find that the defendant and Roana were lawfully married to each other and that the defendant has, within the eighteen months prior to the 5th day of October, 1877, had sexual intercourse with the woman Rachel described in the indictment, he would be guilty of adultery and the decree in the court in Floyd county would be no defense."

This instruction is complained of as erroneous. We think it correct. The decree of divorce was set aside for the fraud of defendant in procuring it and for want of jurisdiction of the court rendering it. The questions of fraud and want of jurisdiction were adjudicated in the final proceedings which resulted in setting aside the decree for divorce; that adjudication is a verity which cannot be questioned in this case. It declares that the divorce is, and was from the beginning, void. A void judgment has no effect, is nowhere binding, and nothing can be based thereon; it will support no claim of right and give protection for no act. This doctrine is familiar and does not demand the support of authorities. The decree of divorce, therefore, did not affect the marriage existing between Roana and defendant; that marriage still exists and existed every moment of time from its celebration to the present. It follows that defendant's pretended marriage with Rachel was no marriage, and that his co-habitation with her was...