145 Iowa 737 | Iowa | 1909
Under a decree of divorce rendered in a suit brought by this defendant against this plaintiff, there was a decree granting to the plaintiff in that case temporary alimony, and from such decree there was an appeal to this court resulting in an affirmance and the entry of judgment against said defendant on which execution issued with a levy on property of defendant; whereupon this suit was instituted to enjoin the enforcement of the judgment on two grounds: First, that the plaintiff in the divorce suit knowingly, willfully, fraudulently, and corruptly sword falsely in an affidavit supporting her motion for temporary alimony that she had no property nor means of support; and, second, that in the petition in the divorce suit there was no allegation that the application was made in good faith and for the purpose set forth in said petition as required by Code, section 31Y2, in such cases. The foregoing are the facts alleged in plaintiff’s amended and substituted petition, and they are for the purposes of the case admitted by defendant’s demurrer thereto which the court sustained.
The court did not err in sustaining defendants’ demurrer to plaintiff’s petition, and the judgment is affirmed.
SUPPLEMENTAL OPINION.
The appellant insists, in a petition for a rehearing, that the opinion is counter to decisions of this court on the question of jurisdiction in a divorce proceeding instituted by a petition lacking the essential averment that the application was “made in good faith.” The cases in this court now relied upon are Pinkney v. Pinkney, 4 G. Greene, 324, Lyster v. Lyster, 1 Iowa, 130, Inskeep v. Inskeep, 5 Iowa, 204-208, and Blinn v. Blinn, 113 Iowa, 83. These cases were not cited by appellant on the original submission, and, as we now. think that they are not at all controlling, we might properly refuse to notice the argument based upon them. But, inasmuch as counsel insists we have gone counter to our own prior decisions, and therefore have introduced a confusion into the law of the state, we have thought best to refer to them in this supplemental opinion.
In the Pinhney case there was an appeal by defendant from a decree of divorce granted by default, and one of -several grounds of reversal was that the petition was not sufficient, because in alleging willful absence of defendant as a ground of divorce it was not stated that such absence was without sufficient cause. The court says this omission is fatal, and in other similar respects the petition is held to be fatally defective. But it is not inti
We do not care now to re-examine the authorities cited from other- states, for the reason that we think the abstract proposition is not involved in this case. The defendant in this proceeding filed the petition which is now assailed as having been defective. Before a decree of divorce was rendered, she asked an allowance, of temporary alimony, which was granted. On an appeal to this court the allowance was affirmed. Whether or not a decree of divorce subsequently x-endered on her petition would have been without jurisdiction is, we think, wholly immaterial.
Other points made in the petition for rehearing are sufficiently covered by the original opinion, and we are satisfied to reaffirm the conclusions there announced.
The petition for rehearing is therefore denied.