86 Iowa 46 | Iowa | 1892
In October, 1889, the defendant and Olive N. Albee were husband and wife. On the twenty-ninth of that month the defendant commenced a suit against his wife for a divorce in Hennepin county, Minnesota, and thereafter such proceedings were had that on the sixth day of January, 1890, the defendant therein obtained, a judgment against the plaintiff therein “for support and maintenance during said litigation, and for costs and disbursements, in the sum of six hundred and fifty-four dollars and thirty-three cents, no part of which has been paid.” On the same day Olive N. Albee assigned the judgment to the plaintiff in this suit, who was her attorney in that suit. This action is brought to recover on that judgment.
The first division of the answer is a denial, except as to certain specific admissions in other divisions thereof. The second division is a defensive plea, and recites, in substance, that Olive N. Albee, in January, 1889, intercepted a letter addressed to her husband, containing a “batch of promissory notes, and a last will and testament,” made by him before his marriage
In Patton v. Loughridge, 49 Iowa, 218, it is held that “a claim of the husband for property of which he has been defrauded by the wife will be presumed to have been adjudicated in an action by the wife for divorce in which a decree allowing alimony was granted, and he cannot afterwards maintain an action on the claim against a party by whose alleged instrumentality the fraud was effected.” In that case the wife had sued for divorce and alimony, and otained them. It is held that claims of the husband against the wife because of her taking or “swindling him out of a part of” his estate should be settled in the divorce proceeding, and not left as an- open question after a decree for alimony. The ruling has no bearing on the question before us. In that case there was an award of permanent alimony, which results from the court’s estimating the property rights of both husband and wife, and fixing,the part that should belong to each, and it will be presumed in such a case that the property rights of the parties were by the decree determined and adjusted. Not so, however, in case of a mere temporary provision for subsistence and expenses during the litigation. In the divorce suit in Minnesota it does not appear that a .divorce was ever decreed, or permanent alimony awarded or refused. In fact the record is silent as to the case ever having been finally determined. It may yet, for aught that appears, be pending. To our minds, the mere fact that the items pleaded as a counterclaim were not presented in the divorce pro