Tollefson v. Tollefson

• Decision Date: 24 January 1908
• Parties: TOLLEFSON v. TOLLEFSON.
• Court: Iowa Supreme Court

137 Iowa 151

114 N.W. 631

TOLLEFSON

v.TOLLEFSON.

Supreme Court of Iowa.

Jan. 24, 1908.

Appeal from District Court, Fayette County; L. E. Fellows, Judge.

The opinion states the case. Reversed and remanded.B. L. Wick and W. J. Ainsworth, for appellant.

D. W. Clements, for appellee.

PER CURIAM.

The plaintiff and the defendant are natives of Norway, where they were married in 1889. Soon after their marriage they came to this country and settled in Fayette county, where they lived together as husband and wife until April, 1898. In April, 1898, the defendant returned to her old home in Norway, taking with her her youngest daughter, a minor, and she has ever since remained there. In March, 1903, the plaintiff filed in the district court of Fayette county a petition asking a divorce from the defendant on the ground of desertion. The notice of such suit was by publication only, and there being no appearance by the defendant either in person or by counsel, a default was taken, and a judgment rendered thereon granting the plaintiff a divorce. In April, 1905, the defendant filed a motion in the original case, asking that the judgment and default be set aside. This motion was overruled and a short time thereafter she filed a petition in the case alleging therein, in substance, that the plaintiff's allegation of her desertion was untrue; that she went to Norway at the instance and request of her husband, the plaintiff; and that he purchased a ticket for her and accompanied her to New York and placed her and her daughter on a steamer and sent her home with the distinct understanding that he would soon follow and join her in Norway. The defendant further alleged that she went to Norway without any intent to leave her husband permanently and only at his solicitation and on his assurance that he would join her there as soon as he could dispose of his property in Fayette county; that in November, 1900, the plaintiff wrote her asking her to execute a deed conveying some of his real estate, and in said letter again assured her that he would return to Norway and live with her as soon as he could dispose of his property; that such promise was repeated in subsequent letters, and that she did not know of his purpose to do otherwise until January, 1904, when she received a letter from the plaintiff informing her that he had obtained a divorce from her and did not wish to see her again; that the divorce obtained by the plaintiff was procured by fraud and false representations. Copies of letters from the plaintiff to the defendant, written to her in Norway, one as late as August, 1901, which tended to support the allegations of her petition, were annexed to her petition, and made a part thereof. A demurrer to the defendant's petition was sustained, and she appeals. The demurrer stated several grounds of objection to the petition, but the only ones relied upon now are, first, that the defendant's petition was not filed within one year after judgment; second, that the defendant has not shown diligence; and, third, that the petition does not allege facts entitling the defendant to the relief demanded, or facts showing fraud. Incidental to the last proposition, it is said that no extrinsic fraud is alleged.

As the petition for a new trial was not filed for more than two years after the judgment of divorce was entered, it is evident that it could not be entertained by virtue of the provisions of section 4091 of the Code, and, as we understand the argument of appellant's counsel, they do not claim to be within the provisions of said section. Neither can the petition be sustained under authority of Code, § 3796, as suggested by counsel for appellant. This section provides for a new trial within two years after judgment, when the notice has...