Jacobsen v. Saner
72 N.W.2d 900
Iowa
1955
Check Treatment
Hays, J.

Appeal from a judgment sustaining defendant’s motion to dismiss plaintiff’s petition.

The petition asks damages from defendant for alleged alienation of affections of plaintiff’s ex-wife. It alleges that plaintiff and Josephine Jacobsen were married in 1924, and resided in Minuesota. Due to alleged acts of Saner, while he was living in Minnesota, Josephine Jacobsen was induced to file divorce proceedings, and later she obtained a default decree in Lincoln County, Minnesota. Defendant is now a resident of Buena Vista County,. Iowa, where this action was brought. Defendant’s motion to dismiss alleges that said petition fails to state a cause of action under section 598.16, Code of 1954.

Section 598.16 provides: “AVhen a divorce is de *193 creed the guilty party forfeits all rights acquired by marriage.” We have held that, under this section, the guilty party is barred from prosecuting an action for alienation of affections. Hamilton v. McNeill, 150 Iowa 470, 129 N.W. 480, Ann. Cas. 1912D 604; Duff v. Henderson, 191 Iowa 819, 183 N.W. 475. See also annotation 20 A. L. R. 943. Both cited cases involve Iowa decrees. Plaintiff asserts the rule announced therein has no application to a decree granted in a state where such an action is recognized. While plaintiff has not pleaded the Minnesota law as required by rule 94, R. C. P., it is inconsequential, since the trial court stated, with apparent approval of both parties: “For the purpose of this ruling it is conceded, I believe, 'that Minnesota does not follow this rule.” We proceed on this assumption.

Plaintiff concedes that had the divorce decree been entered by an Iowa court the holding in above cited cases would bar his action in the Iowa courts. He asserts, however, that comity between states requires the Iowa courts to recognize his cause of action; it being available to him in Minnesota, where the alleged tort was committed. We find no merit in this contention.

Comity is merely a principle in accordance with which the courts of one state will give effect to the laws and judicial decisions of another, not as a matter of right but out of deference and respect. As is said in Russian Socialist Federated Soviet Republic v. Cibrario, 235 N. Y. 255, 259, 139 N.E. 259, 261: “The use of the word ‘comity’ as expressing the basis of jurisdiction has been criticized. It' is, however, a mere question of definition. The principles tying behind the words are recognized. * * * The truth remains that jurisdiction depends upon the law of the forum and this law in turn depends upon the public policy disclosed by the acts and declarations of the political departments of the government.” See also Redfern v. Redfern, 212 Iowa 454, 236 N.W. 399.

It is a fundamental and well-established rule that no action may be maintained upon a cause of action created in another state, the enforcement of which is contrary to the strong public policy of the forum. " Restatement of the Law, Conflict of Laws, section 612; 15 C. J. S., Conflict of Laws, section 4; Farmers & Merchants Nat. Bk. v. Anderson, 216 Iowa 988, 250 N.W. 214; Kingery v. Donnell, 222 Iowa 241, 268. N.W. 617. In *194 the latter ease it is said at page 245 of 222 Iowa, page 619 of 268 N.W.: “ While it is well recognized that the statutes of another state have no extraterritorial force, yet rights acquired therer under will always, in comity, be enforced if not against the public policy of the laws of the state where redress is sought.’ ”

By the enactment of section 598.16, Code of 1954, our legislature, under the construction given said section by this court in the Hamilton and Duff eases above-cited, has in effect said: Where a party has been found to be the guilty or offending party in a divorce proceeding, the courts of this state are not available to him in air attempt to recover damages for the alleged alienation of affection of the other party in the divorce proceeding. It is a clear and positive statement of the public policy of the state, and the “comity” rule is not applicable. To say, as plaintiff would have us say, that such rule is limited only to Iowa divorce decrees, would be granting a forum to nonresidents that is denied to our own residents. We are not prepared to accept this limited version of said section 598.16. See Dorr Cattle Co. v. Des Moines Nat. Bk., 127 Iowa 153, 98 N.W. 918, 102 N.W. 836, 4 Ann. Cas. 519.

Plaintiff cites Luick v. Arends, 21 N. D. 614, 638, 132 N.W. 353, 362. We are unable to find support therein for his contention. Plaintiff and his wife resided in North Dakota. He commenced suit against defendant for the alienation of his wife’s affections. The wife came to Iowa, established a residence, and obtained a divorce. The defendant contended that section 598.16, Code of Iowa, barred the action in North Dakota. The court refused to consider the Iowa statute, holding that the local laws as to both substance and remedy governed. It said: “This is not a ease # * * where a resident of Iowa has invoked the privileges of our courts in the enforcement of an action for damages.” So far as a question of conflict of laws is concerned, the case impliedly holds that where no substantive right accrues in the state where the alleged tort occurred, such rights may not be attained by an action in another state, where a similar tort creates a right. Such is not the instant ease.

Finding no error the judgment of the trial court is affirmed. — Affirmed.

All Justices concur except Peterson, J., who takes no part.