Winder v. Winder

• Decision Date: 09 April 1910
• Docket Number: 15,979
• Citation: 125 N.W. 1095,86 Neb. 495
• Parties: A. H. WINDER, APPELLANT, v. MARY J. WINDER, APPELLEE
• Court: Nebraska Supreme Court

125 N.W. 1095

86 Neb. 495

A. H. WINDER, APPELLANT, v. MARY J. WINDER, APPELLEE

No. 15,979

Supreme Court of Nebraska

April 9, 1910

APPEAL from the district court for Madison county: ANSON A. WELCH JUDGE. Affirmed.

AFFIRMED.

Mapes & Hazen, for appellant.

John W Cooper, contra.

LETTON J. BARNES, J., not sitting.

OPINION

LETTON, J.

In January, 1908, the plaintiff began an action for divorce against his wife in the district court for Madison county. On February 10, 1908, a decree was entered in favor of the plaintiff granting an absolute divorce. On April 6, 1908, a motion to set aside the decree was filed by the defendant, accompanied by an affidavit in support of the motion. Notice was served on April 20 that on May 18, 1908, the defendant would call the motion to vacate the decree for hearing. Objections were filed to the vacation of the decree, and the defendant filed a supplemental answer to the petition. The record recites that on the 20th day of May, 1908, "the same being a judicial day of the February, 1908, term of the district court holden within and for Madison county, Nebraska," the motion was argued and submitted to the court, and the court overruled the same. The record then recites that, it further appearing to the court from the evidence introduced on the hearing of the motion that the petition in this case was filed by collusion between plaintiff and the defendant, it was ordered by the court on its own motion that the decree of divorce and judgment for alimony is hereby set aside, and that the cause be dismissed at the cost of plaintiff. From this order the plaintiff appeals.

The certificate of the clerk of the district court recites that the February, 1908, term of the district court was begun on the 10th day of February, 1908, and adjourned from day to day and from time to time until the 20th day of May, 1908, when said term of court was adjourned sine die; and that the May, A. D., 1908, term was begun on the 21st day of May, 1908.

The appellant contends that the court had no jurisdiction to set aside the decree, for the reason that the term of court at which it was rendered had passed. The record shows that at the beginning of the year 1908, in conformity with the requirements of the statute, the district judge designated February 10, 1908, as the day upon which the February term of the district court for Madison county should begin, and May 18, 1908, as the time at which the May term should begin. On the 15th day of May there was filed with the clerk of the district court a written order dated at Wayne, Nebraska, and signed by the judge, adjourning the court from May 18, 1908, to May 20, 1908, at 1 o'clock P. M., and on the 20th day of May a written order signed by the judge was entered adjourning the May, 1908, term of the district court from May 20, 1908, to May 21, 1908. The motion to open and vacate the decree of divorce was filed in April during the February term of court. Before the hearing, by written order as provided by section 4741 Ann. St. 1909, the May term was adjourned from May 18 to May 20, at 1 o'clock P. M. This was within the power of the court, and will be presumed to have been done upon sufficient reason. Parrott v. Wolcott, 75 Neb. 530, 106 N.W. 607; Russell v. State, 77 Neb. 519, 110 N.W. 380.

The court entered upon the hearing of this motion upon the 20th of May. On that day the May term was again adjourned by written order until the 21st. The record does not indicate the hour at which the hearing began, and, in the absence of proof, regularity must be presumed. The judgment in this case, if made before 1 o'clock P. M. on May 20, was made before the time to which the first order adjourned the May term; if made after 1 o'clock, we must presume it was made after the second order adjourning the term until the 21st. In either event, it was made before the May term began, and must have been made, as the record recites, on a day of the February term. This being the case, the court had power to set aside the decree during the term, if satisfied that it had been obtained by fraud or collusion; or if it believed that its former conclusion was erroneous. Bradley v. Slater, 55 Neb. 334, 75 N.W. 826; Colby v. Maw, 95 N.W. 677, 1 Neb. (Unoff.) 478.

Does the evidence justify the finding of the district court that the decree had been obtained by collusion. The plaintiff and his wife were married in 1891. Four children, the oldest being 14 years of age and the youngest 2 years old at the time of the divorce, were the fruit of their union. The family had resided in Norfolk, Nebraska, for over ten years, when in April, 1905, Mr. Winder purchased a house in Boulder, Colorado, and occupied the same with his wife and family from that time until September or October, 1907. His occupation was that of traveling salesman, although he owned an interest in an incorporated boot and shoe business in Norfolk. After the family moved to Colorado Winder continued to spend a large part of his time in Norfolk, and to vote there, and was interested in the business the same as before. When in town he occupied a room in the house in which the family had formerly lived, and into which house one Haley and his wife, Laura S. Haley, had moved.

In September, 1907, he filed a petition for divorce against the defendant in the district court in Denver, Colorado, alleging extreme cruelty. An answer was filed to this petition, and application made for suit money, alimony, and counsel fees, but before a hearing was had, on the 11th day of October, 1907, he dismissed the case. In the latter part of December, 1908, Mrs. Winder consulted Mr. Tyler, an attorney at Madison, Nebraska, with a view to beginning an action for separate maintenance. In a casual conversation between Mr. Mapes, the plaintiff's attorney, and Mr. Tyler in December, 1907, it was disclosed that Mr. Winder had recently consulted Mapes as to a divorce, and that Mrs. Winder had consulted Tyler. This led to a number of conferences between the attorneys and consultation by them with their clients with reference to the matter of alimony, the custody of the children, and the distribution of the property, and, as Mr. Tyler testifies, "It was later arranged and understood that Mr. Winder should make application for divorce, we insisting on terms as to alimony and the disposition of the property and maintenance and education of the children." After an understanding was reached as to these matters and the same had been explained to Mrs. Winder by her counsel, a petition was filed on January 16, 1907, containing substantially the allegations of the Denver petition as to extreme cruelty. A summons was issued, service accepted by Mrs. Winder, and a general denial filed on the same day, which was February 10, the first day of the February term of the district court. A hearing was immediately had, Winder and one Reid testifying, and the divorce was granted and alimony and custody of the children decreed as had been agreed upon by the parties. Mrs. Winder was present in Madison, but did not attend the trial.

We cannot in the limits of this opinion relate all the facts disclosed by the record. In a lengthy affidavit Mrs. Winder says, among other things, that at this time and for a long time previously she had been in poor health, weak, nervous and easily...