Vinsant v. Vinsant , 49 Iowa 639 ( 1878 )

Day, J.

I. There is not entire uniformity in the decisions as to the manner in which a judgment is affected by a pending appeal. The weight of authority, perhaps, is that the effect of an appeal, with proper bond to stay proceedings, is to suspend the right to execution, but leave the judgment, until reversed or annulled, binding upon the parties as to every question directly decided. See Freeman on .Judgments, § 328, and authorities cited. It seems, however, that the pending of an appeal, where a sufficient bond is given to stay proceedings, does suspend a right of action upon the judgment. See Freeman on Judgments, § 433, and authorities cited.

l. divorce : conviction for felony. We regard the question presented in this ease, however, as involving not so much the effect of an appeal upon a judgment recovered, as the proper construction of .. _ _ _ ,. . n section 2223 or tne Code. This section provides: “Divorces from the bonds of matrimony may be decreed against the husband for the following causes: * * * * When he is convicted of felony after' marriage.” What is meant by the conviction here referred to? Does’it'mean simply a conviction in the nisi pr'ms court, however erroneously or improperly procured, from which an appeal is pending, and. which may be reversed, or does it mean a conviction which has become final by affirmance in the appellate court, or because no appeal has been prosecuted, and which may be followed by one of the incidents of such conviction, incarceration in the penitentiary. The permanency and sanctity of the marital relation are of the highest importance to individuals not only,-but to the well-being of society. It ought not to be dissolved but for the most cogent and satisfactory reasons. The mere loss' of property may be repaired, but no reparation can be made for the deprivation of wife and children. Great injustice might be done, if pending an appeal from an erroneous conviction of a felony, one’s wife may obtain a decree of divorce, with an order for the custody of the children, as was done in this case. As a matter of fact, as our records show, since this cause was submitted to us, tbe conviction of tbe defendant bas been held to be erroneous, and tbe cause bas been reversed and remanded for a new trial. See State v. Vinsant, ante, 241. Upon tbe re-trial tbe defendant may be acquitted. If be should be acquitted then be will not be one wlio, in tbe language of tbe statute, is convicted of a felony. We tbink tbe, statute which authorizes a divorce because of a conviction for a felony, does not refer to a conviction from which an appeal has been prosecuted, and which is liable to reversal, but to a conviction which is final and absolute, either because of affirmance in the appellate court, or because no appeal bas been prosecuted. In our opinion the court erred in sustaining the demurrer to this branch of the answer.

2._. pleading: former adjudication II. The demurrer to the second count of tbe answer was properly sustained. The commission of tbe crime of adultery with Ida Hakes is entirely distinct and different f1'0™- an assault upon her with intent to commit a rape. . It is altogether consistent that tbe defendant might have been innocent of the former crime, and guilty of the latter. A judicial determination that the defendant did not commit adultery with Ida Hakes does not estop the plaintiff, from showing that he has been convicted of an assault upon her with intent to commit rape.

III. The demurrer to the third count of the answer was also properly sustained. An assault with intent to commit rape is not among the causes prescribed for a divorce. A conviction for such assault entitles the wife to a divorce. Prior to such conviction there was no act which the wife could condone so as to deprive her of a right to a divorce because of such conviction. It is not alleged that any act of condonation occurred after the conviction.

For the error before referred to the judgment is

REVERSED.