95 P. 576 | Kan. | 1908
The opinion of the court was delivered by
The principal part of the argument presented in this case is confined to a discussion concerning the jurisdiction of the circuit court in South Dakota, where the plaintiff obtained a divorce from her husband. This subject is fully discussed and many authorities are cited by each party. In the view we-have taken, however, this question is not controlling.
The complaint made by the plaintiff is that the district court erroneously entered judgment in favor of' the defendant upon the pleadings. This question must be determined from the facts alleged. The averments of these pleadings show in substance that A. Scott Bledsoe commenced an action in the state of South Dakota to obtain a divorce from his then wife, the plaintiff in this action. In that action she appeared and filed an answer and cross-petition, in which she asked for a divorce, for the custody of their infant child, and for alimony. The prayer of the cross-petition was granted, and she obtained the decree requested. This decree was entered in 1898, more than seven years before she commenced this action in Shawnee county. She has retained the exclusive possession and control of the child during that time. The judgment for alimony still stands in her favor. A party cannot invoke the jurisdiction and power of a court for the purpose of securing-important rights from his adversary through its judgment and, after having obtained the relief desired, re
This rule has been frequently applied to actions for divorce where the decree was obtained in one state and afterward attacked in another. In the case of In re Ellis’ Estate, 55 Minn. 401, 56 N. W. 1056, 23 L. R. A. 287, 43 Am. St. Rep. 514, it was held that “where, in an action in the court of another state for divorce, both parties voluntarily appear, and submit to the jurisdiction, they are bound by the judgment, and cannot avoid it in a collateral proceeding in this state by proof that when the action was brought and judgment rendered neither of them was a resident in that state, and that both were residents in this státe.” (Syllabus.) The facts of that case show that Matthew Ellis died intestate. Eight years before that his wife, at his request, obtained a divorce from him in the state of Wisconsin, and he subsequently married and left as his widow Flora Ellis.- The two women contested for his estate, each claiming to be his lawful widow. The first wife contended that the Wisconsin divorce obtained by her was void, for the reason that she was not a resident of that state at that time and therefore the 'court did not have jurisdiction. This contention was 'denied: In the opinion the court said:
“It may seem anomalous that a judgment of divorce can be so far effectual between the parties as to extinguish all rights of property dependent on the mar*686 riage relation without being effectual to protect them from acpountability to the state for their subsequent acts. One reason why they ought not to be'permitted, by going into another state and procuring a divorce, to escape accountability to the laws of their state, is that their act is a fraud upon the state, and an attempt to evade, its laws, to which it in no wise consents, and it may therefore complain. But the parties do consent, and why should they be heard to complain of the consequences to them of what they have done? Why should they be permitted to escape those consequences by saying: Tt is true that by false oath made by one of us, and- connived at by the other, we committed a fraud in the Wisconsin court, and induced it to take cognizance of the case; but now we ask to avoid its judgment by proof of our fraud and perjury or subornation of perjury.’ Because we do not think it can be done the parties must, so far as their individual interests are concerned, abide by the judgment they procured that court to render.” (Page 413.)
This case resembles the one just quoted from quite closely. Bledsoe left Kansas and went to South Dakota to obtain a divorce. His wife followed. In his petition he pleaded residence as required by the law of that state. The wife filed a cross-petition in which she alleged “that for more than three months before the commencement of this action the plaintiff has been and now is a resident of the state of South Dakota.” Apparently the only reason for this allegation was a desire to leave the question of jurisdiction unchallenged. As an affirmative allegation of residence it was perhaps insufficient, but it might be construed as an admission of the plaintiff’s averment of that fact.
In the case of Starbuck v. Starbuck, 173 N. Y. 503, 66 N. E. 195, 93 Am. St. Rep. 631, it was held that “a party cannot ... be heard to impeach a decree or judgment which he himself has procured to be entered in his own favor.” (Page 508.) In that action there was a controversy between two women, both claiming to' be the widow of the deceased, and, therefore, entitled to a part of his estate. One of them left the de
While the rule applied in this case does not rest upon the doctrine of estoppel, as that term is ordinarily understood, yet there are some facts present which indicate that an ordinary estoppel might be applied. The plaintiff complains of the defendant for having alienated the affections of her husband. Her right to recover for the acts complained of, which occurred before the divorce was granted, has been long since barred by the statute of limitations. When the plaintiff procured the divorce the defendant, having knowledge thereof, had a right to assume that the plaintiff no longer had or claimed any rights to the affections or society of her former husband, A. Scott Bledsoe, and that any relations which she might assume with him thereafter would not in any way infringe upon the rights of the plaintiff. The conduct of the plaintiff in this respect is almost tantamount to an express withdrawal of-ob
We conclude that the plaintiff should not be permitted to impeach the South Dakota decree. This conclusion disposes of all the other questions in the case and they need not be considered. The judgment of the district court is affirmed.
