The plaintiff and the defendant were married in Minnesota and resided there many years. The defendant went to the state of Washington and there obtained a divorce from the plaintiff upon substituted personal service in Minnesota. The divorce is conceded to be valid. There was no determination as to alimony. The Washington action was in rem. The res was the marriage relation or status. Of that the Washing ton court had jurisdiction and might destroy it by its judgment and it did. The judgment of divorce is not res adjudicata upon the question of alimony and the plaintiff may maintain an independent action for alimony in Minnesota. 3. DIVORCE ~240(2) — ALIMONY PROPERTY ACQUIRED AFTER DECREE OF DIVORCE. In making an award of alimony the court properly took into account real property acquired by the defendant in Minnesota by inheritance after the decree of divorce and charged it with a lien for the alimony awarded. from Nicollet county, where she was living with her relatives. She says that Nicollet county is her home. The finding of the trial court is sustained. A discussion of the evidence would be profitless. From what is said it should not be under. stood that we hold that an independent action for alimony, such as in its result this is, must be brought in the county where the plaintiff resides. [2] 2. In the divorce action in Washington jurisdiction was acquired of the defendant, this plaintiff, by substituted personal serv ice in Minnesota as authorized by the Washington statute which is similar to ours. The action was in rem. The res was the marriage status or relation existing between the parties. That was within the jurisdiction of the Washington court and the effect of its judgment was to destroy it. There was no determination of the question of alimony. The judgment, since it was in rem and operative only on the res, the marriage status, is not res judicata on an application for alimony. The wife, in such a situation as is before us, may maintain an independent action for alimony in the state of her residence and matrimonial domicile. This is the substantial effect of Thurston v. Thurston, 58 Minn, 279, 59 N. W. 1017, and the doctrine finds general though not universal support. See Toncray v. Toncray, 123 Tenn. 476, 131 Appeal from District Court, Nicollet Coun- S. W. 977, 34 L. R. A. (N. S.) 1106, Ann. Cas. ty; I. M. Olsen, Judge. Action for divorce and alimony by Anna V. Searles against William M. Searles. Judgment for plaintiff for alimony only, and defendant appeals. Affirmed. M. E. Stone and Geo. T. Olsen, both of St. Peter, for appellant. Brown S. Smith, of Minneapolis, for respondent. DIBELL, C. The plaintiff and the defendant were married in Nicollet county in 1881. In 1909, while the parties were living in Mahnomen county, the defendant left and went to the state of Washington. In 1913 he obtained a divorce from the plaintiff in the courts of Washington. It is conceded that this divorce was valid. In the action before us the plaintiff asked for a divorce and an allowance of alimony. The defendant pleaded the Washington divorce. The trial resulted in a judgment for the plaintiff for alimony, but not for a divorce, and the defendant appeals. 1912C, 284; Cox v. Cox, 19 Ohio St. 502, 2 Am. Rep. 415; Turner v. Turner, 44 Ala. 437; Cook v. Cook, 56 Wis. 195, 14 N. W. 33, 443, 43 Am. Rep. 706; note 34 L. R. A. (N. S.) 1106; note Ann. Cas. 1912C, 284, 289; note 77 Am. St. Rep. 228, 240; 1 Enc. Pl. & Pr. 415; 2 Nelson, Div. & Sep. § 936; 2 Bishop Marr. & Div. § 844 et seq.; 1 R. C. L. 937. The case of Sprague v. Sprague, 73 Minn. 474, 76 N. W. 268, 42 L. R. A. 419, 72 Am. St. Rep. 636, is so different from the one before us as not to call for discussion. The plaintiff can maintain an action for alimony. [3] 3. When the defendant left Minnesota he had real estate of the value of $200 which he still owns. After the Washington divorce he inherited from his father real property in Nicollet county of the value of $5,200. The court allowed the plaintiff alimony of $1,800 and charged it as a lien upon the Nicollet county property. The contention of the defendant is that alimony must be based [1] 1. The action was brought in Nicollet upon conditions existing at the date of the county. The statute requires an action for decree, and that after-acquired property candivorce to be brought in the county where not be considered or affected. There is auVan Orsdal v. the plaintiff resides. G. S. 1913, § 7114. The thority for this contention. defendant contends that the plaintiff did not Van Orsdal, 67 Iowa, 35. 24 N. W. 579. reside in Nicollet county. The court found There is authority to the effect that after-acthat she did. She was born there and her quired property may be taken into account relatives live there. For some time she has and an allowance made out of it. Toncray been working in Minneapolis, going there v. Toncray, 123 Tenn. 476, 131 S. W. 977, 34 down, plaintiff moved the court below to correct the judgment theretofore entered so as to conform to the decision of this court, and at the same time defendant moved for a new trial on the grounds: (a) The effect of our decision was to grant a new trial; and (b) newly discovered evidence and surprise. Plaintiff's motion was granted and defendant's denied. Defendant appeals from both orders. L. R. A. (N. S.) 1106, Ann. Cas. 1912C, 284; | peal. That appeal challenged the judgment Cox v. Cox, 20 Ohio St. 439. In this state because the conclusion of law did not give the court may alter and revise the judgment | plaintiff the recovery which the findings of awarding alimony to meet changed condi- fact called for. Upon the remittitur going tions. G. S. 1913, §§ 7128, 7129; Haskell v. Haskell, 116 Minn. 10, 132 N. W. 1129, and cases cited; Warren v. Warren, 116 Minn. 458, 133 N. W. 1009; Hoff v. Hoff, 133 Minn. 86, 157 N. W. 999. So it was held proper to revise a decree by making the original award of alimony a lien on property acquired by the defendant by inheritance after the decree of divorce. Roberts v. Roberts, 135 Minn. 397, 161 N. W. 148, L. R. A. 1917C, 1140. These cases point to the doctrine, as the proper one for this state, that in an independent suit for alimony, under circumstances such as are before us, the court may take into account after-acquired property and may make the award a lien upon such property. Judgment affirmed. NATIONAL ELEVATOR CO. v. GREAT It, perhaps, was not commendable practice for plaintiff to move to amend a judgment that this court had reversed; but the motion was entertained and the order made that the clerk enter judgment in favor of plaintiff and against defendant for $64.55, with interest thereon at the rate of 6 per cent. per annum from and after November 6, 1916, together with $25 penalty together with costs and disbursements. Whether considered as an order amending the conclusion (Supreme Court of Minnesota. June 28, 1918.) of law in the findings or, as it reads, an or der for judgment, it is not appealable, and the attempt to have that order reviewed must fail. [2] The question open to consideration on this appeal is defendant's claim to a new trial. The former appeal presented the legal proposition whether the findings of fact called for a different judgment than the one entered pursuant to the conclusions of law, and that in turn depended wholly upon whether in virtue of sections 4491 and 4492, G. S. 1913, the carrier might withhold 60 pounds of grain in a carload shipment without being accountable to the owner therefor. It was held that the sections mentioned did not in any manner affect the civil liability of the carrier. In the shipment here involved, Appeal from Municipal Court of Minneapo- a carload of rye, defendant lost in transit lis; C. L. Smith, Judge. Action by the National Elevator Company against the Great Northern Railway Compaпу. Motion by plaintiff upon remittitur to correct the judgment theretofore entered so as to conform to the decision of the Supreme Court was granted, and defendant's motion for a new trial was denied, and from both orders defendant appeals. Order denying a new trial affirmed. Cobb, Wheelwright & Dille, of Minneapolis, M. L. Countryman, of St. Paul, and John C. Benson, of Minneapolis, for appellant. Lancaster, Simpson & Purdy and H. G. Simpson, all of Minneapolis, and A. C. Remele, of Madelia, for respondent. HOLT, J. [1] The judgment entered in this action was reversed by this court (Nat. Elevator Co. v. Great Northern Ry. Co., 138 Minn. 100, 164 N. W. 79) upon plaintiff's ap 3,926 pounds, of the value of $64.55. Plaintiff filed a claim for $64.20 against defendant. The latter failed to pay within the time prescribed, and this action was brought to recover the amount together with the $25 penalty given by section 4316, G. S. 1913. The court below deducted the value of 60 pounds of rye from the amount lost, and that reduced the recovery below the amount for which plaintiff had made claim, and necessarily avoided the penalty. We held the reduction erroneous and reversed the judgment. This reversal did not per se grant a new trial. The error related wholly to the conclusions of law, and did not involve any finding of fact. And upon remittitur, we think, it was entirely proper for the trial court to amend the conclusions of law so as to order a proper judgment. The reversal of a judgment does not necessarily mean a new trial, Kurtz v. St. Paul & Duluth R. Co., 65 Minn. 60, 67 N. W. 808, and the previous cases in this court there cited. [3] The request for a new trial on the ground of newly discovered evidence and surprise was addressed to the discretion of the trial court, and we are unable to see abuse of discretion in the court's action. Defendant advisedly took its chances when it relied on the statute for a reduction of 60 pounds of the loss instead of submitting evidence as to what the "invisible" loss upon this shipment would have been. The recovery is, perhaps, too large by the amount of the value of the three pounds of sample which the court found that the state abstracted from the car. But that amount does not reduce the loss for which the defendant was responsible below the amount of the claim ($64.20) which plaintiff filed with defendant, under said section 4316. It would still be liable for the penalty because of its neglect to tender plaintiff $64.20 within the time fixed by the section mentioned. The value of the three pounds of rye may therefore be ignored under the rule of de mini mis. The order denying a new trial is affirmed. CRAIG v. SHEA. (No. 20038.) (Supreme Court of Nebraska. June 15, 1918.) (Syllabus by the Court.) 1. BASTARDS 16-RIGHT TO SUPPORT-STAT UTES. Construing the provisions of sections 5795, 8614, Rev. St. 1913, together, it is held that the common-law rule has been abrogated, and that the illegitimate child of a married woman, living separate and apart from her husband, is entitled to support from the actual father. 2. BASTARDS 16-STATUS SUPPORT AND MAINTENANCE-STATUTE. There being no provision in the statute allowing bastardy proceedings to be brought by a married woman, and no other remedy being afforded except criminal prosecution, an illegitimate minor child may, by her next friend, maintain an action in equity against her putative father to declare her status and recover support and maintenance. (Additional Syllabus by Editorial Staff.) 3. BASTARDS 3 PRESUMPTION OF LEGITI MACY-REBUTTAL-STATUTE. Under Rev. Stats. 1913, § 1591, relating to legitimacy of children, the presumption of legitimacy arising from the birth of a child during marriage may be rebutted. C. J. Campbell and R. J. Greene, both of Lincoln, for appellant. J. J. Ledwith, of Lincoln, for appellee. LETTON, J. This is an action in equity for support and maintenance. The defendant filed a general demurrer to the petition, which was sustained, and the cause dismissed. Plaintiff appeals. The petition, in substance, sets forth that the action is brought on behalf of a minor, who is three years of age, by her mother and next friend, Belle E. Craig; that Belle E. Craig, though a married woman, has been separated from her husband, and has not had access to him nor had sexual intercourse with him for a long period of time before the birth of plaintiff; that about nine months prior to the birth of plaintiff she was keeping house as a domestic for John D. Shea; that Shea unlawfully had carnal knowledge by force with said Belle E. Craig, and begot this plaintiff; that Shea, since the birth of plaintiff on October 29, 1912, without good cause abandoned her, and willfully neglected and refused to maintain and provide for her; that he has at all times acknowledged that he is her father; that he is amply able to maintain and educate her; that both she and her mother are destitute; that her mother's husband is living and is the apparent father of plaintiff, although not such in fact; that both Mr. Craig and Mr. Shea are advanced in years; and that it is necessary that the evidence of her paternity be perpetuated. The prayer is that her status be established as the child of John D. Shea; that she be declared a ward of the court, and defendant be required to provide for her maintenance and support; that she recover from Shea $20,000 for her maintenance and education, or such sums as to the court may seem right and proper; that the testimony of the persons referred to be taken and perpetuated, and for other equitable relief. [1, 3] Plaintiff concedes that she is presumed to be the legitimate child of Mr. Craig, but contends that this is a rebuttable presumption, and that the facts set forth in the petition and admitted by the demurrer conclusively establish that she is the illegitimate Ichild of defendant. Her position further is that, since section 5795, Rev. St. 1913, provides in substance that every poor person who shall be unable to earn a livelihood on account of any bodily infirmity, idiocy, lunacy, or other unavoidable cause "shall be supported by the father, grandfather, moth Appeal from District Court, Lancaster er," etc., and "such poor person entitled to County; Stewart, Judge. support from any such relative may bring an his or her own name and behalf," and since section 8614, Rev. St. 1913, provides: Action in equity for support and mainte-action against such relative for support in nance by Flora Belle Craig, by Belle E. Craig, her next friend, against John D. Shea. Demurrer to petition sustained, and cause dismissed, and plaintiff appeals. Reversed, and cause remanded. "Whoever, without good cause, abandons maintain or provide for her, or whoever abanhis wife, and willfully neglects or refuses to dons his or her legitimate or illegitimate child or children under the age of 16 years and willfully neglects or refuses to provide for such child or children, shall, upon conviction, be deemed guilty of a desertion and be punished by imprisonment in the penitentiary for not more than one year, or by imprisonment in the county jail for not more than six months" these statutory provisions set aside the common law, and create a new duty and lia bility not theretofore existing. She also concedes that such an action would not lie at common law. Defendant insists that the statute is a criminal one and does not furnish a basis for a civil action, and argues that even in a criminal proceeding under it plaintiff would be required to show, before a conviction could be had, that the paternity of the child had been established in a bastardy proceeding. unmarried woman, be cast upon the man responsible for its existence. The statute does not in express terms allow an action for the support of an illegitimate child, but it would seem that the Legislature intended to remove the restrictions imposed by the common law, to impose a duty not theretofore existing, and to make that duty enforceable both by criminal and civil process. For a she is entitled to redress. 1 R. C. L. p. 321, violation of the duty to support the plaintiff defendant, she is as much entitled to be sup§ 7. If plaintiff is the illegitimate child of ported by him as if her mother had been an unmarried woman, and, there being no remedy provided by statute, recourse may be had to a civil action to enforce the duty of maintenance. Trier v. Singmaster, 167 N. W. 538, a recent Iowa case, was an [2] The presumption of legitimacy aris- action by an illegitimate child to establish ing from the birth of a child during mar- her status, and her right to inherit was susriage may be rebutted. Gaffery v. Austin, 8 tained even though no bastardy proceedings Vt. 70; 5 Cyc. 626, 627; Rev. St. 1913, 8 had been brought, and with good reason, for 1591, The bastardy statute, since amended in if support is voluntarily furnished by the 1875 (section 357, Rev. St. 1913), by its terms father there is no need for such proceedings. applies only to women who were unmarried An action in equity for support and maintewhen pregnancy began. The mother of plain-nance of a wife is maintainable in this state tiff could not avail herself of its provisions to recover support for her child. Parker V Nothomb, 65 Neb. 315, 91 N. W. 395, 93 N. W. 851, 60 L. R. A. 699. We are of opinion that the provisions of the statutes mentioned indicate that it was the intention of the Legislature that the burden of support of an il-proceedings. legitimate child of a married woman should, as in the case of an illegitimate child of an (Hoon v. Hoon, 82 Neb. 688, 118 N. W. 563), and by analogy such an action should lie under the facts alleged in this case (Paxton v. Paxton, 150 Cal. 667, 89 Pac. 1083). The judgment of the district court is reversed, and the cause remanded for further CORNISH and HAMER, JJ., not sitting. TRUSTEES OF THE FREDERICK M. HUBBELL ESTATE v. DAVISON et al. (No. 31988.) (Supreme Court of Iowa. July 1, 1918.) 1. APPEAL AND ERBOR 1010(1)-REVIEWFINDINGS. A finding of the trial court sitting without a jury, where there is evidence in support there of, has the same effect as a verdict. 2. SALES 467-CONDITIONAL SALES-EXECUTION OF CONTRACT SUBSEQUENT TO SALE. Where goods were bought under parol agree ment that title was to remain in seller until paid for, and that a written contract to that effect was to be executed after delivery to buyer of additional goods, it was a single transaction, contemplating delivery in installments subject to terms of written contract subsequently executed. 3. LANDLORD AND TENANT 248(1) — LIEN FOR RENT-PRIORITY-CONDITIONAL SALE. Where tenant buys goods under contract reserving title in seller until fully paid for, the rights of seller in such goods are superior to landlord's lien for rent. Appeal from District Court, Polk County; Chas. A. Dudley, Judge. This is an action for rent aided by landlord's attachment. The property involved is a lot of fixtures, furniture, and cooking utensils sold by intervener to the defendant for use in a restaurant. The property was purchased and taken on the leased premises, which were occupied by defendant under a written lease with plaintiff, after the execution of the lease and possession had been taken of the premises by the defendant. It is the claim of intervener that the attached property was sold under an arrangement whereby title thereto should remain in inter vener until it was fully paid for, and that, as a portion of the property had to be ordered, the execution of the written contract offered in evidence would be deferred until later, but that same was finally executed in pursu A ance of the oral agreement or understanding of the parties. Pending the litigation, by agreement, the property was taken into the possession of, and held by, intervener. jury was waived, and the cause tried to the court, which found that the lien of intervener was superior to that of plaintiff, and that intervener was entitled to retain final possession of the property. Judgment was entered against plaintiff for the costs incurred in the intervention proceeding. Plaintiff appeals. Affirmed. James A. Howe, of Des Moines, for appellant. Dunshee, Haines & Brody, of Des Moines, for appellee. STEVENS, J. I. The written lease of the building in which the property in controversy was used is dated October 23, 1915, and the conditional sale contract between defendant and intervener bears date April 5, 1916. appears from the evidence that an oral arrangement was first made between intervener and defendant in February for the sale of It the property. Intervener not having all of the merchandise in stock, a portion only was then delivered, but delivery was made in installments until completed. Shortly after the goods had all been delivered, the written contract was executed. Defendant had previously purchased goods of intervener upon contracts, reserving title in intervener until the goods were paid for. At the time of the purchase the terms of the written contract to be executed were not fully gone into, but it is fairly inferable from the testimony that both parties understood that a written contract would be executed, and that title was to be reserved in intervener until the goods were paid for. The matter of executing the contract was mentioned two or three times during the negotiations. As executed, the written contract provides that title shall not pass until the goods were finally paid for. Had this contract been executed at the time the goods were purchased, under our holding in Snyder v. Collins, 164 N. W. 624, there would be no question of intervener's right to the disputed property. At the time it was executed defendant was financially embar rassed, and it is argued by counsel for appellant that the terms of the contract cannot prevail as against the lien of the landlord, for the reason that, at the time the goods were sold and delivered, title passed to the defendant, and the written contract reserving title in intervener was not then in contemplation of the parties. [1] The court, however, found that defendant did not acquire title to the property, and that the lien of the landlord was junior to that of intervener. This finding, which has support in the evidence, has the effect of the verdict of a jury. [2, 3] The oral agreement contemplated that title should remain in intervener until the goods were paid for and that a written contract would be executed later. It was therefore, in effect, a single transaction contemplating the delivery of the property in installments subject to the terms of the written contract to be subsequently signed. The Snyder v. Collins, supra, and the decision in case comes squarely within our holding in that case is controlling here. The judgment of the lower court must therefore be 'affirmed. PRESTON, C. J., and EVANS, GAYNOR, and WEAVER, JJ., concur. ULCH v. WESSELL. (No. 31729.) "Not to be officially reported.”, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |