Williamson v. Williamson

• Decision Date: 19 February 1917
• Docket Number: 31421
• Citation: 161 N.W. 482,179 Iowa 489
• Parties: GEORGE BERTRAM WILLIAMSON, Appellee, v. LILLIAN W. WILLIAMSON, Appellant
• Court: Iowa Supreme Court

161 N.W. 482

179 Iowa 489

GEORGE BERTRAM WILLIAMSON, Appellee, v. LILLIAN W. WILLIAMSON, Appellant

No. 31421

Supreme Court of Iowa, Des Moines

February 19, 1917

Appeal from Woodbury District Court.--GEORGE JEPSON, Judge.

THE petition, filed July 16, 1913, alleged that the parties were married Sept. 1, 1899, that the plaintiff deserted defendant and left the state of Iowa in August, 1910, and that:

"He is now and for more than 35 years last past has been a resident of the state of Iowa, and now resides in Sioux City Township, Woodbury County, Iowa."

The original notice was served by publication; a decree of divorce was entered Sept. 5, 1913; and, on Sept. 1, 1914 defendant, through her attorney, filed a motion to set aside the decree on several grounds, among which was that the decree was void for want of jurisdiction. On Sept. 9, 1915 another motion was filed by defendant, with affidavit attached, alleging as grounds for setting the decree aside (1) That plaintiff had not been a resident of Iowa for a year prior to the commencement of the action; (2) that the petition does not allege the length of his residence in the township stated, after deducting all absences from the state "although defendant, at the time of the commencement of this, was and ever since has been a nonresident of the state of Iowa;" (3) that the plaintiff was not, at the time of the commencement of the action, "an actual and bona fide resident of Sioux City Township or of Woodbury County, in the state of Iowa, but his alleged residence in said township was wholly colorable, and it was assumed for the sole purpose * * * of procuring a decree of divorce," without the knowledge of defendant. The affidavit of defendant, attached to the motion, states that they parted in pursuance of an agreement so to do; that the plaintiff left her without cause and was without cause for obtaining a divorce; that, immediately after making said agreement, defendant went to Omaha, Nebraska, to work for the Woodmen of the World, and has ever since been employed by said order in its main office at said place, and this plaintiff well knew; that, within a few months thereafter, plaintiff removed to the city of Winnipeg in the Dominion of Canada, and made his home there, practicing his vocation of dentistry for the period of two years prior to the commencement of this action; that plaintiff, "at the time of his removal to Canada, and during his said residence and pursuit of his calling there, intended to remain there indefinitely and make his home indefinitely and permanently; and said plaintiff, during his said residence there, lived and cohabited with a woman whom he represented to be his wife; and said plaintiff acquired a domicile and residence in the city of Winnipeg in the Dominion of Canada, which continued until a few days prior to the commencement of this action; that, in the early part of July, 1913, and immediately preceding the commencement of this action, said plaintiff came to Sioux City, Iowa, and started said action for divorce against this affiant, caused the notice to be published in a paper devoted to the publication of legal notices and not read by the public generally, procured the divorce at the time set, and within a day or two thereafter permanently removed from Sioux City and made his home elsewhere." The affiant further swore that "neither affiant nor said plaintiff has at any time been a resident or inhabitant of the city of Sioux City, Iowa, and that both affiant and said plaintiff were, at the time of the commencement of this action, strangers in said county of Woodbury; that said plaintiff, in taking up his residence in said city and remaining there during the time between the commencement of said action and rendition of said decree, had no intention of making said city his home, but intended to remain there only during the time necessary for him to obtain said decree." A copy of the alleged agreement was attached, bearing date Sept. 8, 1910, and it recited: "I am leaving my wife, Lillian Blaine Williamson, and without fault on her part, the only reason being that I have ceased to care for her." Therein he undertakes to pay her $ 25 monthly as separate maintenance, and not to try to get a divorce without having a notice personally served upon her. She agreed to pay her own bills, and that he should not be responsible therefor. The plaintiff moved to strike the motion and affidavit attached thereto, on the grounds: (1) That the same shows that over two years have elapsed since the divorce decree was obtained; (2) that a decree of divorce may not be set aside after the second day of the term succeeding its entry; (3) that thereafter, the decree can only be assailed by petition; and (4) that the decree cannot be attacked even by petition after the lapse of one year from the rendition of the decree.

The motion came on for hearing Nov. 8, 1915, and was sustained. The defendant appeals.

Reversed.

Alfred Pizey and Vail E. Purdy, for appellant.

George G. Yeaman, for appellee.

LADD J. GAYNOR, C. J., EVANS and PRESTON, JJ., SALINGER, J., concurring.

OPINION

LADD, J.

A decree was divorce was entered Sept. 5, 1913. The service of the original notice was by publication. The defendant, who is a resident of Nebraska, on Sept. 9, 1915, filed a motion with affidavit attached thereto, praying that the decree of divorce be set aside. This was on the ground among others, that neither party was, at the time suit was begun, a resident of this state, nor had been for two years previous. The defendant so swore in the affidavit. Oct. 11, 1915, was fixed as the time of appearance and plaintiff duly notified, and on that day hearing on the motion was set down for Nov. 3d following, any counter-showing by plaintiff to be filed at least 10 days before. On Oct. 26th, plaintiff filed a motion to strike defendant's motion and affidavit, for that: (1) Over 2 years had elapsed after the entry of a decree when it was filed, and one and one-half years after she had learned of the decree; (2) such a decree cannot be set aside after the second day of the term succeeding its entry; (3) thereafter, a decree can only be assailed by petition, and (4) not then after one year from the entry of the same; and (5) that, because of her knowledge of the decree for so long a time, defendant is estopped from asking that the decree be set aside. This motion was sustained, and, as we think, erroneously. No prejudice appears to have resulted from the delay in filing the motion to set aside the decree, and therefore one of the essential elements of estoppel is wanting. Nor do the provisions of Sections 3790 and 4091 of the Code relate to judgments or decrees entered without jurisdiction. Both contemplate the acquiring of jurisdiction; for the first authorizes default to be set aside on showing of satisfactory excuse for failure to appear and defend, and must be filed on or before the first day of the succeeding term of court, and the last provides for the vacation or modification of a decree or judgment previously entered, or the granting of a new trial after the term at which rendered, upon showing of matters concerning the obtaining of the judgment. Neither section relates to a decree or judgment entered by the court without having obtained jurisdiction over person and subject-matter, and the precise procedure is not specifically prescribed in the Code. But a motion is defined by Section 3831 of the Code as "a written application for an order, addressed to the court or a judge in vacation, by a party to an action, or by anyone interested therein." As contended, such an order is not a judgment or decree ( Wagner v. Tice, 36 Iowa 599), but its effect may be to set aside or vacate such judgment or decree; and testimony, in the form of affidavit or otherwise, as the parties may agree or the court direct, may be adduced in support of or against such a motion. Section 3833, Code: And we have held...