Webster v. Webster

• Decision Date: 18 June 1880
• Citation: 54 Iowa 153,6 N.W. 170
• Parties: WEBSTER v. WEBSTER.
• Court: Iowa Supreme Court

54 Iowa 153

6 N.W. 170

WEBSTER

v.WEBSTER.

Supreme Court of Iowa.

Filed June 18, 1880.

Appeal from Dubuque district court,

The plaintiff and defendant were married in the state of New York in the year 1870. On the thirty-first of January, 1878, they were divorced by the decree of the district court of Dubuque county, in this state. The decree was upon plaintiff's petition, which charged the defendant with wilful desertion. The defendant was then, and is now, a resident of the state of New York. Service of the original notice was made by publication, and the defendant made no appearance. So far as the record shows it appears that the proceedings were regular, and that the court had proper jurisdiction of the subject-matter and the parties.

On the twenty-eighth day of January, 1879, the defendant filed his petition, in which he avers, in substance, that the plaintiff fraudulently and without cause, and with intent and purpose of procuring a divorce to which she was not entitled, left the state of New York, the place of residence of the parties, and came to Dubuque, Iowa, and commenced her action for divorce, and prosecuted the same to judgment and decree without any knowledge on the part of the defendant of said suit; that plaintiff was not a resident of the state of Iowa, and that she falsely alleged in her petition, and testified upon the trial, that she was such resident; that the allegations of her petition for divorce were false and fraudulent, and that upon said trial the plaintiff introduced false testimony in support of said allegations, and that by means of the fraudulent character of the entire proceedings the plaintiff imposed upon the court, and procured an erroneous and void divorce. The prayer of the defendant's petition was that the decree of divorce be set aside, and that the “court inquire into its jurisdiction in said cause, and in determining that it had no jurisdiction reverse said judgment and deny plaintiff's bill. Or if the court shall determine, upon full examination, that it had jurisdiction, that it will set aside said judgment and decree, open the default, and permit defendant to make defence upon the merits, and for such other and further relief as may be just and equitable.”

There was a demurrer to the defendant's petition which was overruled. Thereupon the plaintiff answered the petition of defendant, and denied the alleged frauds, and averred that she was a bona fide resident of this state when she commenced her suit for divorce. She set up the following in separate divisions or paragraphs of her answer.

“3. Further answering, plaintiff avers that the final decree in this case was rendered on the thirty-first day of January, 1878, and that the rendition of said decree was brought to the knowledge of the defendant within a few days thereafter; that a long time thereafter, to-wit, on the twenty-eighth day of November, 1878, the plaintiff married and became the lawful wife of W. N. Craine, and has ever since and is now living with him as his wife; that during all the time that elapsed between...