Thurston v. Thurston

• Decision Date: 19 July 1894
• Docket Number: No. 8903.,8903.
• Citation: 58 Minn. 279
• Parties: MARIA E. THURSTON <I>vs.</I> CHARLES E. THURSTON <I>et al.</I>
• Court: Minnesota Supreme Court

Page 279

58 Minn. 279

MARIA E. THURSTONvs.

CHARLES E. THURSTON et al.

No. 8903.

Supreme Court of Minnesota.

Argued July 13, 1894.

Reversed July 19, 1894.

Appeal by plaintiff, Maria E. Thurston, from a judgment of the District Court of Ramsey County, Hascal R. Brill, J., entered February 9, 1894, that she was not entitled to any of the relief demanded in her complaint.

Plaintiff commenced this action to obtain a divorce from her husband, the defendant Charles E. Thurston, on the ground of his adultery and cruel and inhuman treatment. She joined as defendants Henry Rothschild and Valentine J. Rothschild, partners in business with her husband, and alleged that in May, 1891, her husband deeded to Henry Rothschild without receiving any consideration therefor, all his real estate in this state, exceeding in value $22,000. That she by persuasion and fraud was induced by her husband aided by Henry Rothschild to join with her husband in the conveyance. That Henry Rothschild still holds the title to the real estate or the proceeds thereof in trust for her husband by some secret contract or understanding. That before the conveyance was made her husband had formed the secret purpose to desert her, obtain a divorce, defraud her out of all alimony and deprive her of her rightful interest in his estate. That both the Rothschilds then knew and aided her husband in the execution of this purpose and obtained the conveyance to Henry in furtherance thereof.

Charles E. Thurston was not personally served with process and did not appear in the action. Henry Rothschild answered that her husband had on February 27, 1893, obtained a divorce from the plaintiff in the Superior Court of Snohomish County, Washington, that he was a resident at that time of that state, and that court acquired jurisdiction and duly made the decree, and that plaintiff is no longer his wife or entitled to judgment of divorce or for alimony or for other relief. The plaintiff by reply denied these allegations. The trial court found that Charles E. Thurston deserted the plaintiff May 19, 1891, but supported her up to April 1, 1893, that he removed from this state and became a resident of Washington in September or October, 1892, and has since resided in that state, that he commenced an action December 10, 1892, and obtained a divorce from plaintiff February 27, 1893, in the Superior Court of Snohomish County in that state on the ground of her cruel and inhuman treatment, he falsely alleging that he had been for more than a year a resident of that state, that plaintiff was served with process in that action by publication thereof according to the laws of that state. As conclusion of law the trial court held that divorce valid and as a consequence that she could not be again divorced from him or obtain alimony or other relief. Judgment for defendants was entered on these findings and plaintiff appeals.

H. J. & A. E. Horn, for appellant.

Briggs & Countryman, for respondents.

CANTY, J.

The plaintiff brought an action for divorce against her former husband, Charles E. Thurston, and service was had on him personally in the state of Washington, pursuant to 1878 G. S. ch. 62, § 12. He never appeared or answered in the action. She joined in the same action the defendants Henry and Frank W. Rothschild, and alleged in her complaint that they were partners in business with her said husband, and had in their hands property of his invested in the partnership business, and that her said husband was the owner of certain real estate described in the complaint, and that during the month of May, 1891, he contemplated deserting her, and commencing a suit against her for divorce, and procured her, in ignorance thereof, to join with him in deeds of conveyance of said real estate to said Henry Rothschild, pursuant to a fraudulent conspiracy between him and said Henry, whereby it was agreed that said Henry was to hold said real estate for the sole use and benefit of her said husband, for the purpose of depriving her of her interest and rights therein, and of any claim for alimony, support, and maintenance which she might make against her husband; and she prayed that she be granted a divorce, and be awarded the expenses of the suit, temporary and permanent alimony, support and maintenance and that the payment of all of the same be enforced against said property and any other property of her husband.

The defendants Henry and Frank W. Rothschild answered separately, and Henry, among other things, answered that on December 10, 1892, said Charles E. Thurston, being then, and for more than one year prior thereto, a bona fide resident of the state of Washington, commenced an action for divorce in the superior court of Snohomish county, in that state, and such proceedings were thereupon had that on February 23, 1893, judgment was duly entered in his favor, adjudging that the marriage between him and her be dissolved, and that they be divorced.

On the trial of this action, before the court without a jury, by agreement of the parties and consent of the court, the question whether or not such Washington divorce was valid and binding on her was to be first tried, and thereupon the court was to decide whether or not, in any event, she could maintain this action against the Rothschilds, reserving the other issues to be tried afterwards.

On the evidence then introduced, the court found that plaintiff and defendant Thurston were married in 1869, removed to this state in 1886, and resided here until the fall of 1892, when he removed to the state of Washington, and in a couple of months afterwards, on December 10, 1892, commenced said divorce action, stating in his sworn complaint that he was then a resident of that state, and had been for one year immediately prior thereto; the summons was served on her by publication, and on the hearing that court found the allegations of that complaint to be true, and ordered the judgment which was entered as aforesaid; that the law of Washington requires the plaintiff in a divorce suit to be a resident of, and to have resided in, that state, for one year immediately before filing the complaint in the action; that in fact he had not then resided there one year, but only since September or October, 1892; that in other respects the action was prosecuted according to the law of that state; and that she never was in that state, but...