Williamson v. Williamson
179 Iowa 489
Iowa
1917
Check Treatment
Ladd, J.

11 opening5?!-va- • judgment^di*4932- oponingNoi-: va.ludgmentTproce<Juie' *492A decree of divorce was entered Sept. 5, 1913. The service of the original notice was by publication. The defendant, who is a resident of Nebraska, on Sept. 9, 1915, filed a motion with affidavit attached thereto, praying that the decree of divorce be set aside. This was *493on tlie ground, among others, that neither party was, at the time suit was begun, a resident of this state, nor had been for two years previous. The defen dent so swore, in the affidavit. Oct. .11, 1915, was fixed as the time of appearance and plaintiff duly notified, and on that day hearing on the motion was set down for Nov. 3d following, any counter-showing by plaintiff to be filed at least 10 days before. • On Oct. 26th, plaintiff filed a motion to strike defendant’s motion and affidavit, for that: (1) Over 2 years had elapsed after the entry of a decree when it was filed, and one and one-half years after she had learned of the decree; (2) such a decree cannot be set aside after the second day of the term succeeding its entry; (3) thereafter, a decree can only be assailed by petitioii, and (4) not then after one year from the entry of the same; and (5) that, because of her knowledge of the decree for so long a time, defendant is estopped from asking that the decree be set aside. This motion was sustained, and, as we think, erroneously. No prejudice appears to have resulted from the delay in filing the motion to set aside the decree, and therefore one of the essential elements of estoppel is Wanting. Nor do the provisions of Sections 3790 and 4091 of the Code reíalo to judgments or decrees entered without jurisdiction. Both contemplate the acquiring of jurisdiction; for the first authorizes default to be set aside on showing of satisfactory excuse for failure to appear and defend, and must be filed on or before the first day of the succeeding term of court, and the last provides for the vacation or modification of a decree or judgment previously entered, or the granting of a new trial after the term at which rendered, upon showing of matters concerning the obtaining of the judgment. Neither section relates to a decree or judgment entered by the court without having obtained jurisdiction over person and subject-matter, and the precise procedure is not specifi *494rally prescribed in the Code. But a motion is defined by Section 3831 of the Code as “a written application for an order, addressed to the court or a judge in vacation, by a party to an action, or by anyone interested therein.” As contended, such an order is not a judgment or decree (Wagner v. Tice, 36 Iowa 599), but its effect may be to set aside or vacate such judgment or decree; and testimony, in the form of affidavit or otherwise, as the parties may agree or the court direct, may be adduced in support of or against such a motion. Section 3833, Code. And we have held that, to vacate a void judgment, the proper procedure is by filing motion praying that this be done. Spencer v. Berns, 114 Iowa 126. And this is in accord with procedure elsewhere. Rays Black, in the first volume of his work on Judgmenis, Sec. 303:

“The method of procuring the vacation of judgments which is by far the most commonly used, at the present day, is the proceeding by application to the court which rendered the judgment, in the form of a motion, with notice to the adverse party. This practice, being simple, speedy, and effective, is well calculated to promote the interests of justice with the least cost and trouble to suitors.”

It differs from an application to set aside a default made (Section 3790 of the Code), in that the mover is not required to plead to the merits, and is not limited to any time within which to file or present his motion. See Belknap v. Belknap, 154 Iowa 213, 226; Jordan v. Brown, 71 Iowa 421.

A void judgment is no judgment at all, and no rights are acquired by virtue of its entry of record. A court may at anjT time expunge it from the record upon motion. The lapse of time is no bar to such relief. Neff v. Beauchamp, 74 Iowa 92; Hayes County v. Wileman, 82 Neb. 669 (118 N. W. 478) ; Heffner v. Gunz, 29 Minn. 108 (12 N. W. 342); Hanson v. Wolcott, 19 Kans. 207; 2 Bishop on Marriage, *495Divorce & Separation, Section 1545; Freeman on Void Judicial Sales (4th Ed.), Section 2.

Though service was by publication, the two-year limitation prescribed by Section 3796 of the Code, in which applications for new trial must be made, does not concern divorce suits (Tollefson v. Tollefson, 137 Iowa 151), nor cases where the judgments entered are void. (Gaar Scott & Co. v. Taylor, 128 Iowa 636). Nor does Section 4093 of the Code apply, for that neither it nor Section 4091 relates to void judgments. It follows that the motion of plaintiff to strike should have been overruled; for the procedure by filing a motion was proper, and this was in time.

3. Divorce : .iudg* moni or decree: nonconclusivenos» of finding on question oí residence. The merits could not well have been passed on, and for this reason we might stop here: but, as the only debatable question, 77 ° x 1 asicpe from fraudulent concealment, prej k sented by the motion, is whether the district court of Woodbury County acquired jurisdiction of the subject-matter, and this is argued, something may he added on that issue.

Section 3171 of the Code declares:

“The district court in the county where either party resides has jurisdiction of the subject-matter of this chapter” (relating to divorce and alimony).

But for such enactment, the courts would be without jurisdiction in the matter of granting divorces. What follows relates to the details of procedure and the grounds on which decree of divorce or annulment may be procured. Gelwicks v. Gelwicks, 160 Iowa 675; Scott v. Scott, 174. Iowa 740. See Mengel v. Mengel, 145 Iowa 737. Section 3172 of the Code exacts that a bona fide residence of petitioner in the county, when defendant is a nonresident, for one year preceding the filing of the petition, be alleged; and Section 3173, that, “if the averments as to residence are *496not fully proved, the hearing shall proceed no further, and the action be dismissed by the court.”

4 divorce • -¡urisresiaonc'e11™’ noth parties. Appellee’s contention seems to be that, from the entry of the decree, the court is presumed to have passed on the issue of residence, and decided that plaintiff was a resident of Woodbury County at the time of commencing the suit; and because of this, its decision must be treated as res o-d judicata. That a bona fide residence is essential to confer jurisdiction has been the ni]e 0f p]j|s court since Hinds v. Hinds, 1 Iowa 36, and obtains generally. If neither party was a resident of Woodbury County, actually bona ñde and animo manendi, the court did not acquire jurisdiction. Dutcher v. Dutcher, 39 Wis. 651. 2 Bishop on Marriage, Divorce & Separation, Section 111. In other words, such a residence is essential to the jurisdiction of the court.

That the court passed on that issue is necessarily conceded, but the contention of defendant is that its decision was induced by the fraud of plaintiff by false testimony concerning his place of residence, and in concealing the fact of his application for divorce from defendant. Counsel for appellee argue that, even though the decree may be shown to have rested on perjured evidence, this would not justify vacating the decree, and relies on Graves v. Graves, 132 Iowa 199, and like cases; but the rule laid down in these decisions relates to evidence bearing on the merits. That rule does not obtain where the fraud complained of was that of inducing the court to act by falsely showing a color-able jurisdiction of the subject-matter, where there was no real jurisdiction over the same. Caswell v. Caswell, (Ill.) 11 N. E. 342; Edson v. Edson, 108 Mass. 590, 599; 2 Bishop on Marriage, Divorce & Separation, Sec. 184. See Rush v. Rush. 48 Iowa 701 (46 Iowa 648). Whitcomb v. Whitcomb, 46 Iowa 437; Klaes v. Klaes, 103 Iowa 689; Lawrence v. Kelson, 113 Iowa 277.

*497In Scott v. Scott, 174 Iowa 740, the issue as to jurisdiction was directly raised by defendant, and, both parties being before the court, the finding that the court had jurisdiction was declared, in the absence of fraud or collusion, conclusive as between the parties, save on appeal. ' Here there was no appearance by the defendant. The notice was served by publication, and the hearing ex pm-te. In such a case, the authorities leave no doubt that issue as to whether the court acquired jurisdiction to entertain the suit may be raised by motion of the defendant to vacate the decree as void on that account.- — Reversed:

Gayxor, C. J., Evans and Preston, JJ., concur. Salinger, J., concurs in reversal, hut is of opinion that the merits should not be passed on, and he expresses no opinion on same and does not desire to be concluded upon the merits.