Thorn v. Salmonson
| Decision Date | 05 November 1887 |
| Parties | SOPHIA THORN v. SOPHIA SALMONSON |
| Court | Kansas Supreme Court |
Error from McPherson District Court.
THE opinion states the facts. At the November Term, 1885, the court overruled plaintiff's demurrer to defendant's answer, and sustained defendant's demurrer to plaintiff's reply. To reverse these rulings the plaintiff, Sophia Thorn, brings the case here.
Judgment reversed, and cause remanded.
John McPhail, for plaintiff in error.
Simpson Bowker & Travis, for defendant in error.
OPINION
This is a proceeding in error to reverse the rulings of the district court of McPherson county in overruling a demurrer to the answer of the defendant, and in sustaining a demurrer to the reply of the plaintiff, and in the judgment given against her. In her petition, the plaintiff substantially alleged that in 1852, at Jonkoping, in the kingdom of Sweden, she was married to Karl Johan Thorn, and that they lived together there as husband and wife until 1862, and had six children born to them, four of whom died in infancy; that in 1862 he separated from her and went into a distant portion of the kingdom of Sweden, where he obtained a pretended decree of divorce, which was procured without notice to her, and was void; that after the pretended decree of divorce was granted he married Sophia Carlsdotter, now Sophia Salmonson, and soon afterward they emigrated to America, and lived together as husband and wife in McPherson county, Kansas, until August 17, 1881, when he died; that at the time of his decease he was the owner of 160 acres of land in McPherson county, of the value of $ 5,000, and of personal property worth $ 2,000 that a will made by him in 1869, which bequeathed all his personal property to the defendant, was probated, and under which she took and appropriated all the personal property of which he died possessed; that after the death of Thorn the defendant took the proceeds of the sale of the personal property and purchased the interest of his two children in the real estate mentioned, and that since that time the defendant has been in the possession of the land, claiming the same as the widow and legal heir of Thorn. The plaintiff therefore asked that she be adjudged to be the lawful widow of Thorn, and entitled to all the property, real and personal, which belonged to the estate of the deceased, and the issues and profits of the same, and for an accounting.
The defendant answered that Karl Johan Thorn was legally divorced from the plaintiff in February, 1864, in one of the district courts of Sweden, and she attached to her answer an authenticated copy of the decree. She further alleged that subsequent to the rendition of the decree, and while it was in full force and effect, she was legally married to Thorn in Sweden, and she set forth a copy of the marriage certificate, duly signed by the parish pastor. She further answered that the decree of divorce had been fully adjudicated in the courts of the kingdom of Sweden, and was duly affirmed by the court of highest resort in that kingdom and she referred to and made a part of her answer an exhibit which embodies a transcript of the proceedings of the courts in that respect. The plaintiff demurred to the answer, alleging that it was insufficient to constitute a defense. The demurrer being overruled, she filed a reply in which she alleged in substance that she had never received any personal or other notice of the divorce proceeding, or of any of the proceedings referred to in the answer; that she never made any voluntary appearance or otherwise submitted her cause or any cause personal to her as the wife of J. C. Thorn, in any of the courts of the kingdom of Sweden. The court sustained a demurrer to...
To continue reading
Request your trial
-
State v. Elliott
...Kan. 37, 40, 468 P.2d 132 (1970), stated: `A judgment is always subject to collateral attack for lack of jurisdiction. (Thorn v. Salmonson, 37 Kan. 441, 15 P. 588 [1887].)' "A judgment that is rendered with lack of jurisdiction is void. See State v. Chatmon, 234 Kan. 197, 205, 671 P.2d 531 ......
-
Wyeth Hardware & Manufacturing Co. v. H. F. Lang & Co.
... ... 74; Eager v. Stover, 59 Mo. 88; Barlow v ... Steel, 65 Mo. 619; Napton v. Leaton, 71 Mo ... 358; Railroad v. Sharritt, 43 Kan. 375; Thorn v ... Salmonson, 37 Kan. 441; Litowich v. Litowich, ... 19 Kan. 455; Pennywit v. Foote, 27 Ohio St. 618; ... Thompson v. Whitman, 18 Wall. 457; ... ...
-
State v. Patterson, 76684
...in favor of the validity of the foreign judgment and of the truth of the recitals in the journal entry attached. (Thorn v. Salmonson, [37 Kan. 441, 15 Pac. 588.] ) The burden was upon the defendant to show the journal entry was incorrect and that he, in fact, did not have the benefit of cou......
-
State v. Duke
...v. Hudspeth, 166 Kan. 476, 201 P.2d 658.) A judgment is always subject to collateral attack for lack of jurisdiction. (Thorn v. Salmonson, 37 Kan. 441, 15 P. 588.) A collateral attack of a judgment rendered in violation of the rule established in Gideon v. Wainwright, supra, does not offend......