Nos. 14,011—(52) | Minn. | Mar 3, 1905
The original complaint herein sought an absolute divorce from defendant because of adultery. The answer, after a general denial, also sought an absolute divorce because of adultery and cruel and inhuman treatment. Subsequently plaintiff amended his complaint, and therein sought to annul the marriage of plaintiff to defendant because of the following facts. In 1894, at Milwaukee, Wisconsin, the defendant married Robert J. Nelson. In 1895 she began an action in the district court of Hennepin county, Minnesota, where she was then residing, against Robert J. Nelson for divorce, on the ground of cruel and inhuman treatment. Personal service of the summons and complaint therein was thereafter made upon the defendant at Philadelphia, Pennsylvania. Such proceedings were thereafter duly had in said action that on December 12, 1895, a judgment of divorce was rendered therein in favor of the plaintiff. On June 7, 1902, defendant became the wife of this plaintiff. In November of the following year this action for divorce was begun. The plaintiff, in his amended complaint, claimed that this judgment of divorce in said case of Nelson v. Nelson is void upon its face, because the record affirmatively shows that the summons and complaint therein were never in fact served upon the defendant, Nelson. This claim is spelled out of the officer’s return of the service of the summons and complaint upon the defendant therein at Philadelphia, hereafter stated.
The defendant by her answer denied her incapacity to marry plaintiff, and alleged a regular divorce from the former husband, and asked for attorney’s fees, suit money, and alimony. Plaintiff demurred to this answer on the grounds (1) that the aforesaid facts relating to the divorce of Clara Nelson from Robert J. Nelson failed to show a valid divorce; (2) that, in a proceeding to annul a marriage, no allowance for temporary alimony could be allowed upon a counterclaim seeking a divorce on the grounds of adultery and cruel and inhuman treatment. From an order overruling this demurrer, and from an order allowing temporary alimony, counsel fees, and suit money, plaintiff appealed.
1. A judgment of a court of superior or general jurisdiction cannot be collaterally attacked unless the record affirmatively shows want
In East Chance Mining Co. v. Tyler Mining Co., 157 U.S. 683" court="SCOTUS" date_filed="1895-04-15" href="https://app.midpage.ai/document/last-chance-mining-co-v-tyler-mining-co-94182?utm_source=webapp" opinion_id="94182">157 U. S. 683, 691, 15 Sup. Ct. 733, Justice Brewer said: “But a judgment by default is just as conclusive an adjudication between the parties of whatever is essential to support the judgment as one rendered after answer and contest. The essence of estoppel by judgment is that there has been a judicial determination * * * and not upon what evidence, or by what means was it reached.” The conclusive presumption of validity extends to the return of process upon which the judgment is based. 40 Cent. Dig. § 193. All intendments are indulged in support of the judgments of courts of general superior jurisdiction. 30 Cent. Dig. § 934. Thus informalities, including errors in the name of the person designated in the return of service of summons, are not sufficient basis for indirect impeachment of a judgment. Hollingsworth v. State, 111 Ind. 289" court="Ind." date_filed="1887-06-18" href="https://app.midpage.ai/document/hollingsworth-v-state-7048925?utm_source=webapp" opinion_id="7048925">111 Ind. 289, 12 N. E. 490; Smith v. Bradley, 14 Miss. 485" court="Miss." date_filed="1846-01-15" href="https://app.midpage.ai/document/doe-ex-rel-smith-v-bradley-8328222?utm_source=webapp" opinion_id="8328222">14 Miss. 485; Campbell v. Hays, 41 Miss. 561" court="Miss." date_filed="1867-06-15" href="https://app.midpage.ai/document/campbell-v-hays-8257829?utm_source=webapp" opinion_id="8257829">41 Miss. 561; Crizer v. Gorren, 41 Miss. 563" court="Miss." date_filed="1867-06-15" href="https://app.midpage.ai/document/crizer-v-gorren-8257830?utm_source=webapp" opinion_id="8257830">41 Miss. 563; Rigby v. Lefevre, 58 Miss. 639" court="Miss." date_filed="1881-04-15" href="https://app.midpage.ai/document/rigby-v-lefevre-7985558?utm_source=webapp" opinion_id="7985558">58 Miss. 639; Kelly v. Harrison, 69 Miss. 856" court="Miss." date_filed="1892-04-15" href="https://app.midpage.ai/document/kelly-v-harrison-7987228?utm_source=webapp" opinion_id="7987228">69 Miss. 856, 12 South. 261; Oswald v. Kampmann (C. C.) 28 F. 36" court="U.S. Cir. Ct." date_filed="1886-06-28" href="https://app.midpage.ai/document/oswald-v-kampmann-8125428?utm_source=webapp" opinion_id="8125428">28 Fed. 36; Peck v. Strauss, 33 Cal. 678" court="Cal." date_filed="1867-10-15" href="https://app.midpage.ai/document/peck-v-strauss-5436482?utm_source=webapp" opinion_id="5436482">33 Cal. 678; Wilson v. Call, 49 Iowa, 463" court="Iowa" date_filed="1878-10-25" href="https://app.midpage.ai/document/wilson--co-v-call-7098093?utm_source=webapp" opinion_id="7098093">49 Iowa, 463. And if the language of the return fairly admits of a construction which will make the return legal and sufficient, it should be so construed. Curtis, J., in Coggswell v. Warren, 1 Curt. 223" court="None" date_filed="1852-09-15" href="https://app.midpage.ai/document/coggswell-v-warren-9301495?utm_source=webapp" opinion_id="9301495">1 Curt. 223, Fed. Cas. No. 2,958; Murfree, Sher. § 864.
Plaintiff here contends that the judgment of divorce of the defendant from her former husband in the case of Nelson v. Nelson is void even on collateral attack; that the proof of service therein shows on its face the service of the summons and complaint, aimed at a man whose true name was Robert J. Nelson, upon a man whose true name was
2. It was further urged that there was no authority for personal service of summons and complaint outside the state. R. S. 1851, p. 335, c. 70, § 51, authorized such service. After a learned examination of the statutes, counsel for plaintiff asserts that this provision was repealed in 1866, and not re-enacted until 1901, and that, since the divorce of defendant herein from her former husband was procured in 1895, and was based on such service, it is void. It is not necessary to consider here in detail the merits of this argument as to' such legislative history. G. S. 1894, §§ 4796, 4797, sufficiently, if inferentially, authorize the actual service here made.
3. There is no merit to the further contention in plaintiff’s demurrer that, since this is an action to annul marriage, the defendant cannot therein secure a divorce on the ground of adultery and cruel and inhuman conduct, and that therefore the court may not order temporary alimony. Especially in view of the history of the pleadings in the case, the trial court properly held that
There can be no good reason given why the rights of the respective parties in an actipn of this kind may not be litigated and determined • without driving them to separate lawsuits.*305 * * * To deny the defendant this relief in this action would be to prolong these domestic troubles and multiply the lawsuits between the parties, and largely increase the costs and expenses of litigating their respective rights.
4. This court has examined the orders for alimony and suit money, and finds no abuse of the discretion of the trial court or other error therein.
The orders appealed from are sustained.