
    George Bertram Williamson, Appellee, v. Lillian W. Williamson, Appellant.
    JUDGMENT: Opening or Vacating — Void Judgment — Divorce. 1 Lapse of time does not, of itself, bar a motion to set aside a void decree. So held in divorce proceedings.
    JUDGMENT: Opening or Vacating — Void Judgment — Procedure. 2 The proper procedure lo set aside a void judgment is by motion.
    
      DIVORCE: Judgment or Decree — Nonconelusiveness of Finding on 3 Question of Residence. The granting of a decree of divorce necessarily embraces a finding that the recipient of the decree is a resident of the county; but such finding, when induced by fraud and perjury, on ex parte hearing, on service by publication, is not conclusive.
    .DIVORCE: Jurisdiction — Nonresidence c ' Both Parties. Jurisdic4 tion of proceeding for divorce is not obtained in the absence of bona fide residence in the county, animo manendi, of at least one of the parties.
    
      Appeal from Woodbury District Gourt. — George JEpson, Judge.
    Monday, February 19, 1917.
    The petition, filed July 16, 1913, alleged that the parties were married Sept. 1, 1899, that the plaintiff deserted defendant and left the state of Iowa in August, 1910, and that:
    “He is now and for more than 35 years last past has been a resident of the state of Iowa, and now resides in Sioux City Township, Woodbury County, Iowa.”
    The original notice was served by publication; a decree of divorce was entered Sept. 5, 1913; and, on Sept. 1, 1914, defendant, through her attorney, filed a motion to set aside the decree on several grounds, among which was that the decree was void for want of jurisdiction.. On Sept. 9, 1915, another motion was filed by defendant, with affidavit attached, alleging; as grounds for setting the decree aside: (1) That plaintiff had not been a resident of Iowa for a j^ear prior to the commencement of the action; (2) that the petition does not allege the length of his residence in the township stated, after deducting all absences from the state, “although defendant, at the time of the commencement of this, was and ever since lias been a nonresident of the state of Iowa;” (3) that (lie plaintiff was not, at the time of the commencement of (he action, “an actual and bona fide resident of Sioux City Township or of Woodbury County, in the state of Iowa, but his alleged residence in said township was wholly colorable, and it was assumed for the sole purpose * * * of procuring a decree of divorce,” without the knowledge of defendant. The affidavit of defendant, attached to the motion, states that they parted in pursuance of an agreement so to do; that the plaintiff left her without cause and was without cause for obtaining a divorce; that, immediately after making said agreement, defendant went to Omaha, Nebraska, to work for the Woodmen of the World, and has ever since been employed by said order in its main office at said place, and this plaintiff well knew; that,.within a few months thereafter, plaintiff removed to the city of Winnipeg in the Dominion of Canada, and made his home there, practicing his vocation of dentistry for the period of two years prior to the commencement of this action; that plaintiff, “at the time of his removal to Canada, and during his said residence and pursuit of his calling there, intended to remain there indefinitely and make his home indefinitely and permanently; and said plaintiff, during his said residence there, lived and cohabited with a woman whom he represented to be his wife; and said plaintiff acquired a domicile and residence in the city of Winnipeg in the Dominion of Canada, which continued until a few days prior to the commencement of this action; that, in the early part of July, 1913, and immediately preceding the commencement of this action, said plaintiff came to Sioux City, Iowa, and started said action for divorce against this affiant, caused the notice to be published in a paper devoted to the publication of legal notices and not read by the public generally, procured the divorce at the time set, and within a day or two thereafter permanently’ removed from Sioux City and made his home elsewhere.” The affiant further swore that “neither affiant nor said' plaintiff has at any time been a resident or inhabitant of the city of Sioux City, Iowa, and that both affiant and said plain-
    
      tiff were, at the time of the commencement of this action, strangers in said county of Woodbury; that said plaintiff, in taking up his residence in said city and remaining there during the time between the commencement of said action and rendition of said decree, had no intention of making-said city his home, but intended to remain there only during the time necessary for him. to obtain said decree.” A copy of the alleged agreement was attached, bearing date Sept. 8, 1910, and it recited: “I. am leaving my wife, Lillian Blaine Williamson, and without fault on her part, the only reason being that I have ceased to care for her.” Therein he undertakes to pay her $25 monthly as separate maintenance, and not io try to get a divorce without having a notice personally served upon her. She agreed to pay her own bills, and that he should not be responsible therefor. The plaintiff moved to strike the motion and affidavit attached thereto, on the grounds: (1) That the same shows that over two years have elapsed since the divorce decree was obtained; (2) that a decree of divorce may not be set aside after the second day of the term succeeding its entry; (3) that thereafter, the decree can only be assailed by petition; and (4) that the decree cannot be attacked even by petition after the lapse of one year from the rendition of the decree.
    Tie motion came on for hearing Nov. 8, 1915, and was sustained. The defendant appeals.
    
    Reversed.
    
      Alfred Piscy and Vail E. Purdy, for appellant.
    
      George G. Vea/man, for appellee.
   Ladd, J.

2- oponingNoi-: va.ludgmentTproce<Juie' A 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 on 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 rally 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, Divorce & 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.

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 not fully proved, the hearing shall proceed no further, and the action be dismissed by the court.”

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.

In 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.  