Williamson v. Williamson

• Citation: 231 N.W. 506,120 Neb. 40
• Decision Date: 01 July 1930
• Docket Number: 27167
• Parties: ERMA WILLIAMSON, APPELLEE, v. EMMA WILLIAMSON ET AL., APPELLANTS
• Court: Supreme Court of Nebraska

231 N.W. 506

120 Neb. 40

ERMA WILLIAMSON, APPELLEE, v. EMMA WILLIAMSON ET AL., APPELLANTS

No. 27167

Supreme Court of Nebraska

July 1, 1930

APPEAL from the district court for Lancaster county: ELWOOD B CHAPPELL, JUDGE. Reversed.

REVERSED.

Syllabus by the Court.

A party may raise the question of jurisdiction over his person for the first time in his answer. If, instead of answering, he files a motion attacking the petition, he thereby waives the question of jurisdiction over his person.

In an alienation suit by the wife against the parents of the husband, the burden is on the wife to establish by a preponderance of the evidence malice of the parents.

The law presumes that the father and mother, in advising their child acted in good faith, and for what they supposed to be his best interests.

Evidence examined and held to be insufficient to sustain a verdict in favor of the plaintiff.

ROSE and DAY, JJ., dissenting.

Appeal from District Court, Lancaster County; Chappell, Judge.

Action by Erma Williamson against Emma Williamson and another. Judgment for plaintiff, and defendants appeal.

Reversed and remanded.

Good, Richardson & Good and E. S. Schiefelbein, for appellants.

Roy B. Ford and W. B. Comstock, contra.

Heard before GOSS, C. J., ROSE, DEAN, THOMPSON, EBERLY and DAY, JJ., and LIGHTNER, District Judge. ROSE and DAY, JJ., dissent.

OPINION

LIGHTNER, District Judge.

This is a suit by Mrs. Erma Williamson, wife of Alva Williamson, against his parents for alienating his affections. The jury found in plaintiff's favor in the sum of $ 7,500 and the defendants bring the case to this court on appeal.

Defendants present two main grounds for reversal: First, that the district court erred in striking from their answers their pleas to the jurisdiction; and, second, that the evidence is not sufficient to sustain the verdict.

Defendants separately plead that they were induced to come into Lancaster county by the fraud and trickery of the plaintiff who there secured service of summons upon them. However, the defendants did not raise this question when they were first called upon to answer, but they each filed a motion asking that the petition be made more definite and to strike. It is a well-established rule in Nebraska that by filing such motion the defendants submitted themselves to the jurisdiction of the court and waived any irregularity or defect in obtaining jurisdiction over them. Bankers Life Ins. Co. v. Robbins, 59 Neb. 170, 80 N.W. 484, and Lillie v. Modern Woodmen of America, 89 Neb. 1, 130 N.W. 1004. This rule is in conformity with good judgment, for naturally it would be useless for the court in Lancaster county to spend its time examining the petition persuant to defendants' motion if the court did not have jurisdiction over the persons of the defendants. To the same effect see Linton v. Heye, 69 Neb. 450, 95 N.W. 1040; Hurlburt v. Palmer, 39 Neb. 158, 57 N.W. 1019; Kyd v. Exchange Bank of Cortland, 56 Neb. 557, 76 N.W. 1058; Baker v. Union Stock Yards Nat. Bank, 63 Neb. 801, 89 N.W. 269; and Gaines v. Warrick, 113 Neb. 235, 202 N.W. 866. Defendants insist that our court has held that the filing of a preliminary motion or demurrer does not waive the objection, and there appears to be some support for this contention in the case of Kyd v. Exchange Bank of Cortland, supra. In that case the defendant filed a demurrer based evidently on the want of jurisdiction which must have appeared on the face of the petition. The court sustained the demurrer. Later the plaintiff amended his petition and the defendant then successfully raised the question of jurisdiction in his answer. That the case above referred to does not rule the instant case will appear from the syllabus wherein it is said that, if the defect be one of jurisdiction of the person, it is not waived by demurring to the original petition generally, if such demurrer is sustained for the reason stated in the order, that the court is without jurisdiction, and where the plaintiff waives any error in that order by amending his petition.

We will next examine defendants' claim that the evidence is insufficient to support the verdict. Defendants claim that the evidence does not show that they alienated their son's affections from plaintiff, or if their acts and advice could by any construction be held to have produced that result that nevertheless they were not actuated by malice but by good motives in all that they did and said. The writer has carefully read the pleadings and read and abstracted the bill of exceptions consisting of over 280 pages and believes that the record is entirely deficient in proof to support a verdict for the plaintiff.

The facts in this case are substantially as follows: The plaintiff and Alva Williamson, son of the defendants, were married at the plaintiff's home in Lennox, Iowa, on July 4, 1927. Plaintiff was then 20 years old and Alva was 21. Alva's parents lived in Lincoln at that time and both plaintiff and Alva were attending the Lincoln School of Commerce. The young couple first met in 1926. Alva brought plaintiff to his home and introduced her to his family in February, 1927, and about two weeks before the marriage she came to live with the defendants, and on July 5, after returning from the marriage, she continued to live with them until about August 1, 1927, when the young couple moved to Stapleton, Nebraska, where Alva was employed in a lumber yard. He lost his position about December 1, 1927, and on invitation from the defendants the young couple again made their home with the defendants, except for visits, and part of the time Alva was employed at a distance. Plaintiff, however, continued to live with them until about May, 1928, when she finally left, or, as she claims, was forced to leave, since which time she has been living in Lincoln. The defendants moved from Lincoln to Ithaca about March 1, 1928, and the plaintiff accompanied them. There was no quarreling between plaintiff and defendants, no open hostility of any kind, and so far as the record shows the defendants were not aware of the fact that anything they ever said injured the feelings of the plaintiff, but the plaintiff says that on several occasions the defendant father-in-law made remarks which deeply wounded her feelings. She claims that on one occasion when her husband was working at Palmer and she was looking for a letter from him and asked her father-in-law if one had come, he said: "No. He has probably got another girl out at Palmer anyway. He isn't so foolish as he used to be. When I was first married I used to be foolish too, but I got over that." And at another time while her husband was in Wood River her father-in-law said: "He isn't foolish any more like he used to be." The defendant Elmer Williamson denies making these statements. If he made them they undoubtedly show a lack of delicacy on his part, but plaintiff says herself that she did not cry or show her feelings before her parents-in-law and there is nothing in these statements made in the absence of the husband, and in so far as the record shows not communicated to him, which would have any tendency to alienate his affections.

Plaintiff accuses the defendants of advising a separation without legal justification. Alva testified that once in April, 1928, when his father was wanting him to move out on his farm the following spring, he said: "'If there is any trouble between you'--now, he didn't know that there was and I didn't tell him that there was. * * * 'If you are going to separate, the quicker you quit, the better. There is no children to suffer by the separation now, and if that is what it is coming to, the quicker the better.'" The evidence however shows conclusively that there had been trouble between the young couple prior to this time. The father-in-law's version of the matter is that on the day in question, April 27, 1928, he had a talk with his son about going out on his farm, and the son told him that he and his wife had been wrangling all the way from Palmer home and said: "I am leaving here, * * * I flatly refuse to live with her." And then the father said, "If that is the way you feel about it, don't bring any children in this world that have to suffer along with the rest of us," and that was the only time he ever said anything about separation. This conversation, as related by the son, has a tendency to support plaintiff's contentions, but even the son's account indicates that the father believed that they were having trouble, a fact that could scarcely escape his notice since they were all living under the same roof, and the advice given under such belief cannot be said to have been malicious.

Plaintiff complains that defendants by their advice prevented the young couple from going to California where Alva could obtain work but the record is clear that no job in California had actually been offered to him. The question of going to California came up in the winter on receipt by plaintiff of a letter from a relative, a demonstrator for aluminum ware, suggesting that the young husband might find work there, but not actually offering him a job. They had $ 75 or $ 100 and intended to make the trip by automobile. Mr. Williamson, Sr., simply intimated that it would be unwise to undertake the trip at that time of the year with so little money and no job assured. Plaintiff also complains that the mother-in-law prevented Alva from taking a job in an apartment house in Lincoln, and claims her mother-in-law said in effect that such a job was below his education and station in life, but the record shows quite conclusively that he was the second applicant for the job and intended to take it, but when he came back to further see about it, it had already been given to...