Todhunter v. De Graff

• Decision Date: 24 March 1914
• Citation: 164 Iowa 567,146 N.W. 66
• Parties: TODHUNTER v. DE GRAFF, JUDGE.
• Court: Iowa Supreme Court

164 Iowa 567

146 N.W. 66

TODHUNTER

v.DE GRAFF, JUDGE.

Supreme Court of Iowa.

March 24, 1914.

Certiorari proceedings to the District Court of Polk County to review an order setting aside a decree of divorce granted to the plaintiff. Affirmed.George Wambach, of Des Moines, and Berry & Watson, of Indianola, for plaintiff.

DEEMER, J.

May 2, 1913, plaintiff filed a petition in the district court of Polk county, asking for a decree of divorce from her husband, Clift Todhunter, alleging desertion as a ground therefor. Service of notice was made by publication and at the following September, 1913, term of court, the matter came on for hearing, the defendant not appearing, and, upon hearing the testimony offered on behalf of plaintiff a decree of divorce was granted on the 11th day of September of that year, plaintiff filed a supplemental petition or application in which she asked that the court modify its decree, and permit her to marry. This application was granted and a supplemental decree was passed giving her permission to remarry. It is claimed that pursuant to the permission she did marry one Joe Heather.

On October 11, 1913, and during the same term of court one Allison, a stranger to the proceedings, appeared before the judge trying the case and filed an affidavit in which he charged that plaintiff, during the pendency of her divorce proceeding and afterward, had been living in open adultery with Heather; that the defendant in the divorce proceeding had, as plaintiff well knew, been in the insane hospital at Clarinda where he had been confined until the winter or spring of the year 1913; that he had never deserted the plaintiff, as she well knew; that plaintiff was in fact a resident of the city of Indianola, in Warren county, at the time she commenced her suit in Polk county; and that at the time she brought her suit for divorce she contemplated marrying Heather. The affidavit also showed that just previous to the bringing of her suit in Polk county, plaintiff had commenced an action for divorce from her husband in Warren county, in which she alleged as grounds therefor cruel and inhuman treatment and habitual drunkenness, that a guardian ad litem was appointed for the defendant in that suit, who had filed an answer, and that but a few days before bringing the suit in Polk county she had dismissed her action in Warren county. Upon this affidavit, and from other sources of information, the trial court made the following order:

“Whereas, on the 11th day of September, 1913, the above-entitled cause came on for trial before the undersigned judge of the district court in and for Polk county, and whereas, on the 11th day of September, 1913, a decree was signed and entered in said cause and whereas, since the entry of said decree in said cause, information has come to this court and to the judge presiding in said cause that the plaintiff was not a bona fide legal resident of said county and state at the time of filing her petition in said cause, and that her residence in Polk county, Iowa, was not in good faith and was for the purpose of obtaining a divorce, and further that the defendant in said cause upon whom notice by publication was had for the purpose of giving this court jurisdiction in the premises was at said time an insane person, and was at said date not a discharged patient from the said hospital for the insane at Clarinda, Iowa, and further that the allegations of the plaintiff in her petition that the said defendant was guilty of willful desertion for more than two years was false and untrue, and that the proof offered in support thereof upon the trial of said cause was false and untrue, and in support of the falsity of the allegations of plaintiff in her petition hereto is attached and made a part of the affidavit of one Frank Allison and in order that the truth of the statements therein contained and to determine whether or not perjury has been committed and fraud practiced upon this court, the court on its own motion orders that said cause be reopened, and it is further ordered that notice be served upon the plaintiff, Effie Todhunter that further hearing shall be had in said matter before this court on the 20th day of October, 1913, at 2 p. m., and that notice of said hearing shall be served upon the plaintiff, Effie Todhunter, at least five days prior to said date.”

This order was made on the 14th day of October, 1913, and a notice, of which the following is a copy, was served upon the plaintiff:

“To Effie Todhunter: You are hereby notified that an order of court has been entered in the above-entitled cause, a copy of which is hereto attached, ordering and directing the reopening of said cause for the purpose of determining the truth or falsity of the allegations of plaintiff's petition and the truth or falsity of the proof offered in support thereof upon the trial of said cause, and you are notified that under order of court said cause shall be reopened for the purpose of taking further testimony on the 20th day of October, 1913, at 2 p. m., before Lawrence De Graff, judge of the district court in and for Polk county, Iowa. Lawrence De Graff.”

Plaintiff responded to this notice, and filed a resistance to the setting aside of the decree, which was accompanied by an affidavit from plaintiff in which she attempted to show residence in the city of Des Moines, Polk county, at the time her petition was filed in that county. She also stated in her affidavit:

“That at the time when she commenced the action, she firmly believed that the said defendant was taken to the insane hospital in October, 1909, and that said defendant was committed to the hospital for the insane at Clarinda, on the information of his father, and was against the objections of this affiant. That at the time of said divorce being called, this affiant testified that the said defendant was let out of the hospital for the insane about two years ago and in giving said testimony, she believed that it was two years since he was let out of the hospital. That she has been informed from time to time that the said defendant was working outside of the hospital, and also worked in the laundry of said hospital and was at liberty. That she received a letter from said defendant when he was at or near Sidney, Iowa, and after he was let out of said hospital, purporting to give her notice that he would not live with affiant any longer, that said letter had become lost or was destroyed and she was unable to give the exact date when said letter was written, but believed that the same was about two years prior to the time. That since the filing of the affidavit reciting the dates, etc., affiant has made inquiry as to the exact time or times when the said defendant was committed to the hospital of the insane, and when he was dismissed from said hospital, and found that she was mistaken as to the dates mentioned in her petition and the testimony, and now states that the said defendant was committed to the hospital for the insane at Clarinda, Iowa, in October, 1910, and was dismissed on parole from said hospital in October, 1912. That for the further confirmation of the dates herein given, she procured the certificate of Max E. Witte, the superintendent of the insane hospital at Clarinda, which is hereby attached and made a part of this affidavit, that this defendant is credibly informed and believes, and upon such information and belief states the fact to be, that the said Clift Todhunter, after the dismissal from the hospital at Clarinda, secured employment on a farm near Sidney, Iowa, with one John Biggins, and that he remained with the said John Biggins, working on said farm for a period of about three months, that during that time he was so employed he made the declaration that he and his wife could not get along together and so he left her, and when he was ready to start for California in January or February, 1913, he stated to the said John Biggins, that he intended to go there to make his home and that he did not intend to take his...