19 Ky.L.Rptr. 563, 100 Ky. 310
Court of Appeals of Kentucky.
MALCOLM v. MALCOLM.
Dec. 18, 1896.
ACTION: Affirmed.


Appeal from circuit court, Bell county.
"To be officially reported."
Action by F. W. Malcolm against Kate P. Malcolm for divorce.
From a judgment dismissing the complaint, plaintiff appeals.

HAZELRIGG, J.
The appellant and appellee were married at Zanesville, Ohio, in October, 1885. They appear to have lived together happily until in January, 1890, when evidences of trouble between them began to attract the notice of their relatives. Just what caused this is not apparent from the record. In the spring of that year she was staying with her mother at the old homestead in Zanesville, and the appellant was probably in New York City, at his father's. A part of the correspondence between them is before us, and it shows that by the latter part of March, 1890, their estrangement was well-nigh complete. This was rendered the more emphatic later on, when the husband openly accused the appellee of infidelity. In August she moved to Denver, Colo. It is her contention that the health of her child required a change of residence. Moreover, a sister lived at Helena, Mont., and a brother in Southwest Missouri. Friends of long standing also lived at Denver. The bulk of her father's estate, including her own inheritance, was invested in Kansas and other Western states. The old homestead was to be sold, her father having recently died; and, when looking about for a home, she selected Denver as the most suitable. She claims that she especially desired to get away from Zanesville, where the person lived with whom the husband had charged her to be criminally intimate. The appellant in the meantime became a citizen of Pineville, Ky., and in March, 1892, brought this suit against appellee for a divorce, and for the custody of their child, alleging as grounds therefor adultery and abandonment. The wife was proceeded against as a nonresident, but at once entered her appearance by her attorneys and filed an answer. She denied the averments of the petition, and also pleaded that by a decree rendered by the county court of Park county, in the state of Colorado, in November, 1891, she had been granted a divorce from the appellant. The appellant, in his reply, attacked the Colorado decree, because obtained by fraud, and in a court having no jurisdiction. The allegations of fraud were then responded to by a rejoinder, and to this the plaintiff filed a surrejoinder. Upon a trial of the cause the court adjudged that the plaintiff had failed to sustain the averments of his petition, upheld the Colorado decree, declined to make any order as to the custody of the child, and dismissed the petition.

We have examined carefully the proof submitted by the plaintiff to sustain the charges of his petition, and unhesitatingly approve the finding of the chancellor with respect thereto. There is no reason whatever to believe from this evidence that the appellee is other than a faithful and virtuous woman, and was without fault in her conduct as wife and mother. The testimony to the contrary does not rise to the importance of demanding comment or discussion. It is apparent from the record that the child, a girl of tender years, is where it belongs,-with its mother. The petition was, therefore, properly dismissed; and this would seem to be sufficient for the case. But the issues with respect to the Colorado decree were made up by elaborate pleadings, maintained by voluminous proof, obtained at great cost, and tried out by the court below. It is proper, therefore, to pass on the questions thus raised. It is insisted by appellant that the demurrer to the answer and amended answer should have been sustained, because the law of Colorado was not properly pleaded; that the provisions of that law showing what facts would give jurisdiction over a nonresident as appellant was, or how service could be had on him, should have been set out, as well as what were the legal grounds of divorce in that state. If we concede all this to be required, yet, after pleading this judgment in full, and all the proceedings in the Colorado court, the appellee alleged the Colorado law to be that a married woman is entitled to an absolute divorce from her husband if he, being in good bodily health, and able to furnish provision for the support of his wife, has failed for more than one year to furnish provision for the support of his wife or family. And, moreover, that under the statutes of that state the county court of the wife's residence, or any county court of the state, had jurisdiction to grant a divorce on the complaint of the wife, etc. In his reply, the appellant denied that the decree of the "said county court set out in the answer is of any force, operation, or effect, because of the facts hereinafter affirmatively shown." And among the alleged affirmative facts are: (1) That he was a resident of the state of Kentucky at the time the complaint was filed, and that the only residence which appellee had apart from his residence was at Zanesville, Ohio. (2) That under the laws of neither Kentucky nor Ohio was it a ground of divorce in favor of a wife that her husband, being in good bodily health, had failed for 12 months to make provision for her. (3) That, in order to evade the laws of Kentucky and Ohio, and with the view of procuring a divorce on ground not authorized by the laws of either of these states, she pretended to take up her residence in Colorado. (4) That no summons was ever served on him in the action; that he had no notice of its pendency; that no copy of any summons in the action, or of any newspaper containing the publication ordered by the county court in the action, was mailed to him by the clerk. (5) That the law of Colorado then in force provided that when service was had in an action by publication, a copy of the summons so published should be by the clerk of the court mailed, duly stamped, and addressed to the defendant at his post office, if known; that, in order to prevent the clerk from sending out this notice, the appellee falsely and corruptly swore that his post office address was unknown to her, and at the same time fraudulently procured the court to make an order for service on him by publication as provided by the laws of Colorado. To this the appellee filed a rejoinder, denying any fraud or misstatement by her in the procurement of the decree, but not denying the Colorado law to be as stated by the plaintiff. She also set up in her amended rejoinder that under section 75 of the Civil Code of that state it is provided-quoting the section-that: "When, for any cause the summons in an action has not been personally served, the court may allow, on such terms as may be just, such defendant, or his legal representative at any time within one year after the rendition of the judgment in such action, to answer to the merits of the original action;" and that within the year, as provided by this law, the defendant had appeared in the Colorado court rendering the original judgment, and had filed his petition against her, asking a vacation of the judgment; that in this suit she was served with process, and entered her personal appearance,-the result of the action being the dismissal of the plaintiff's application for vacation. An official transcript of the proceeding was filed and set out in the pleading. These facts she pleaded in bar of plaintiff's right to attack the Colorado decree in the Kentucky courts. The appellant, by surrejoinder, responded, among other things, that he had filed such a bill, and it had been dismissed, as he believed, because he had, in the court's opinion, mistakenly filed a new bill instead of appearing in the old suit, etc. From all this it appears clearly that the parties undertook to plead, although they did not in all cases quote, the statutory laws of Colorado on the subject involved. The issues thus joined were fully prepared by both sides to the controversy, and the statutes and codes of that state were filed as part of the record, and proof taken of those learned in the law. Moreover, the trial court was asked to and did try out these issues as if the pleadings had most accurately set out the statutes in question in their very words. The parties, therefore, have prepared and tried the very issues which the appellant now seeks to say were not accurately set out in the pleadings. Under such circumstances, the rule is that the defective pleading, even if there be a defect of substance, is cured by what is termed in pleading "intendment of the verdict," and there can be no clearer case for the application of this principle than in the case at hand. In all this the important fact is to be noticed that the appellant, though appearing in the Colorado court, where the judgment of divorce was rendered, did not enter as by the law he was given the right to enter, his motion in that case to vacate the judgment. It seems to us, therefore, that, as he no longer has such right in that court, he ought not to be allowed to do so here. If he pursued the wrong remedy by filing a new bill, the fact remains that he did not appear in the case in which the judgment was rendered, and make his defense, if he had any. Nor, aside from this, are we prepared to say that the appellee was guilty of any fraudulent conduct or misstatement of fact in the Colorado proceedings under which she obtained the divorce.

The judgment above is affirmed.

Ky.App. 1896.
MALCOLM v. MALCOLM.
38 S.W. 141, 19 Ky.L.Rptr. 563, 100 Ky. 310



     

Last Update Tuesday, 18-Dec-2012 01:31:33 EST

 County Coordinator
County Coordinator: Gayle Triller
Copyright © 2015 by the KYGenWeb Team. All
rights reserved. Copyright of submitted items
belongs to those responsible for their authorship or
creation unless otherwise assigned.