Hamilton v. McNeill

Evans, J.

The plaintiff was married 'in December, 1899. On March 2, 1906, his wife obtained óf divorce from him in the district court of Mahaska County. Some timé after the decree of divorce, the defendant herein married the plaintiff’s former wife. Thereupon this action was brought. The defendant was an acquaintance of both parties for some years prior to the divorce. He was a bachelor about sixty years of age. At the time of his marriage to plaintiff’s former wife, he was sixty-three years of age and she was twenty-six. The plaintiff charged in his petition herein that the defendant alienated the affections of his former wife by means which are epitomized in appellee’s argument as follows: That beginning with the month of October, 1902, the defendant W. A. Mc-Neill, began paying attention and showing courtesies to Hamilton’s wife, which McNeill continued until he had ■alienated the affections of Hamilton’s wife. That McNeill induced her to accept the use of his automobile and to ride with ' him therein; to • accept gifts of flowers and money and other things, and by usiqg other and various means, the exact description of which -was unknown to the’ plaintiff, he “premeditatedly, wickedly, wrongfully, and unlawfully cultivated-and caused to grow up between' himself and the plaintiff’s wife a relationship and social intimacy by means of which he gained her confidence, affection, and love.” The petition further stated that McNeill obtained control of the plaintiff’s wife’s conduct and ac'frons and'acquired-■great-influence-over’her; thát'-hé-visited her at frequent intervals at her house, while the plaintiff was absent during the business hours of the day and in the evening, when plaintiff was not at home, remaining at plaintiff’s house with his wife, during the plaintiff’s absence, frequently taking her' out in his automobile, ■through the public streets of Oskaloosa, and in the country, both in the day and night time; that McNeill, by such means and influence, caused plaintiff’s wife to withdraw her affection and companionship and love from the plaintiff, whereby the plaintiff’s home was destroyed, his family broken up, and plaintiff deprived thereof, and the plaintiff lost the services, assistance, society, companionship, and love of his wife, because of the acts of McNeill.

The. petition did not charge any criminal relation between the wife and the defendant. The defendant pleaded in effect a general denial. He also pleaded the facts as to the rendition of a decree of divorce against the plaintiff in favor of his wife, and averred that by the findings of such decree the plaintiff was the guilty party, and that he had thereby forfeited all right to maintain the present action. It is undisputed that in the divorce proceeding the ■plaintiff’s wife • charged the defendant husband (plaintiff herein) with cruel and inhuman treatment such as to endanger her life, and that the decree in her favor was based upon the finding of facts so alleged. The contention of the defendant herein was and is that the effect of such decree is to leave the plaintiff without any standing in this action. This contention is based in the first instance upon the following ■ provision of section 3181 of the Code, which is as follows: ■ “When a divorce is- decreed, the guilty party forfeits all fights acquired by the marriage.”

As against this contention the plaintiff replies that the section in question is without application to the case for the - following reasons:- (1) ' The adjudication in the divorce suit was binding only as between the parties thereto. (2) -The •rights'Involved"-were vested-in the plaintiff .prior to the divorce, and- the plaintiff could not be deprived thereof without due process of law. (3) That the allegations of the petition in the divorce case were false, and the findings of the decree were not true in fact and the decree was obtained by collusion between the parties, and is not binding as an adjudication even between them. (4) That the rights contemplated by the statute in question are such as would arise against the innocent party and not such as might arise against third persons. This in brief presents the contention at this point, and to this question we will direct our first attention.

1. Husband and wife: alienation of affection: right of action: effect of' divorce: statute. I. We think it must be said that plaintiff’s right, if any, to maintain this action, is necessarily a right “acquired by the marriage.” The cause of action is one which could arise only out of and by virtue of the On the face of the stat-marriage relation. ute therefore, the plaintiff, having been adjudged in the divorce decree to be the guilty party, forfeited “all rights acquired by the marriage. Levins v. Sleator, 2 G. Greene, 604; Lucas v. Sawyer, 17 Iowa, 517; Maynard v. Hill, 125 U. S. 190 (8 Sup. Ct. 723, 31 L. Ed. 654) ; Nolin v. Pearson, 191 Mass. 283 (77 N. E. 890, 4 L. R. A. (N. S.) 643, 114 Am. St. Rep. 605).

2. Same: effect of divorce: who may plead same. II. As against this it is argued that the defendant was not a party to the divorce decree, and is entitled to no benefits from the adjudication had therein. If this contention be conceded, it falls short of saving to the plaintiff an affirmative right of action. The question at this point is not who shall be the beneficiaries of the statute under consideration, but what consequences shall ensue to the “guilty party” as adjudged in a divorce decree. The statute has to do not only with the peculiar and individual rights of the parties to the suit as between themselves, but it has to do also with the public right and the public interest. .If the Legislature deemed it to the public interest, and- so enacted, that in case of divorce the guilty party should forfeit- “all rights acquired by the marriage,” we know of no rule that would permit such forfeiture to be avoided by a showing that such forfeiture would operate to the benefit in a negative sense of an undeserving person.- The following discussion in Dillon v. Allen, 46 Iowa, 299, is pertinent at this point: “The effects of statutes which make unlawful specified acts, upon persons violating them or aiding in their violation are not considered in their enforcement by the courts. If one offender suffers thereby and the other gains an apparent benefit, no argument can be drawn therefrom for suspending the operation of the law. This is an incident in the administration of justice against which neither Legislatures nor the courts can provide. The party suffering, being in delicto, can not complain of the operation of the law, for he merits the punishment prescribed for - its violation. ■ It can not be said that the law confers upon the other a benefit because of his violation of its provisions. What he gains comes to him as a punishment of the other party, not as a reward to himself.” If the defendant herein were attempting to build for himself an affirmative case upon the alleged forfeiture, the question of his desert and the fact that he was not a party to the adjudication would be a more important consideration.

3. Same: divorce: forfeiture of marital rights. III. The construction contended for by plaintiff appellee is that the rights “acquired by the marriage” referred to in the statute are those rights and obligations otherwise owed to the “guilty party” by his spouse, the forfeiture of which would inure to the benefit of such -spouse alone. The effect of this construction would be to obliterate. this part of the statute and to leave it without any function what: ever. Under other sections of the statute the questions- of alimony and the custody of children, are questions- to be determined by tbe court in each given case. The right of dower to either party is terminated by mere force of the decree of divorce and the right of either party, whether guilty or innocent, is neither greater nor less than the right of the other, so far as the question of dower is concerned. And this was the rule at common law before the enactment of this statute and was so recognized by this court in an early day. Levins v. Sleator, 2 G. Greene, 604, 609; McCraney v. McCraney, 5 Iowa, 232; Marvin v. Marvin, 59 Iowa, 699; Boyle v. Latham, 61 Iowa, 174; Winch v. Bolton, 94 Iowa, 573. This particular provision of the statute was first enacted in 1846 and appeared in the Code of 1851. It was omitted from the revision of 1860 and was not reenacted until 1873, when it was again included in the Code. This provision of the statute, therefore, serves no function with reference to dower or to alimony or to the custody of children. It is suggested by appellee that it was enacted at a'time when.the rule of the common law was in doubt, and that it was intended only to be declaratory of the comomn law as to the effect of a decree of divorce in terminating the right of dower. This suggestion is not without its plausibility so far as the original enactment in 1846 is concerned. One difficulty with this position is that there was no doubt as to the rule of the common law in this respect at the time of the reenactment of this provision in 1873, nor is the enactment declaratory of the common law in fact so far as the question of dower is concerned. This statute imposes a forfeiture upon the “guilty ■ party” alone. If it were intended to determine only the question of dower, its clear implication would be that no' forfeiture was imposed upon the innocent party in that respect; whereas the rule of the common law as announced' by this court in its early cases holds dower to be barred to either party, whether ‘guilty or innocent. "See, also, Barrett v. Failing, 111 U. S. 523 (4 Sup. Ct. 598, 28 L. Ed. 505); Pullen v. Pullen, 52 N. J. Eq. 9 (28 Atl. 719) ; 2 Bishop on Marriage and Divorce, section 1633; 2 Scribner on Dower' (2d Ed.) chapter 19, sections 20-23. It is our conclusion, therefore, that we can not hold this provision of the statute to be merely declaratory of the common law and as mere surplusage.

4. Same: constitutional law: due process. The point urged by appellee that the application of this provision to the case at bar would be a violation of the Constitution in that it deprives the 'plaintiff of a vested right of property without due process of law is not tenable. The statute provides for no forfeiture except after due process of law. The divorce proceeding resulting in a decree con- ■ stituted due process of law. It was none the less so because defendant made default. The statute gave to him full warning as.to the consequences in case of an adverse decree. Possibly the very purpose of the statute was to discourage default and to encourage a contest and a presentation thereby of the point of view of both parties. This would aid the court in ascertaining the real truth and would operate to the public interest. .

5. Divorce: judgment: conclusiveness. IV. Particular stress is laid by appellee upon the proposition that a decree of divorce is binding as an adjudication only as between the parties thereto, and that it is not binding as between either party and a third party. The plaintiff pleaded in his , reply that the allegations of the petition in the divorce case were' false and that the findings of the decree were not in fact true. He averred that he was not in fact the guilty party although the decree found him so, and that he was not guilty of the acts of cruelty charged against him in the decree. He contends here for his right to contradict the decree as between him and the defendant. The general rule that an adjudication is binding as such only .upon the parties to the litigation- and their privies may be. taken for granted. This general rule, however, has various and varying exceptions which we will not stop now to note. The difficulty with applying such rule to a divorce case is that, in the eyes of the law, the parties to the case are not the only parties in interest in the litigation. In ordinary litigation, the parties to the case may waive proofs and concede facts and stipulate for judgment. In such a case the court may properly grant to plaintiff all the relief which is not resisted by the defendant. In a divorce case, the court is charged with a special duty toward the public. It must look beyond the wi-shes of the parties. It must often ignore admissions and be watchful against collusions, and must ascertain as near as may be the very truth, even though it result in the defeat of the mutual wishes of both parties. Unless the real facts as the court shall find them from the evidence justify a divorce under the law, then it must be refused, even though both parties desire it. In such a case, the court is dealing with something more than the private rights of the parties to the case. The marriage to be dissolved is not a mere contract, but is a status. In such status, the public interest is involved in a very sensitive way. A decree of divorce dissolves not only the marriage contract, but changes the status of the parties and thereby their relation to the public as well as to each other. The binding force of such decree necessarily enters into the future relations of the parties, not only as between themselves, but affects also-their relations with third parties. The parties to the case may enter into other marriages and the validity or void-ability of such marriages, as the case may be, must necessarily depend upon the validity of the decree of divorce. If a third party may not rest upon the verity of a decree of divorce, then it must logically follow that such decree has not been effective to establish .or to change the status of the parties thereto. If we were to adopt the theory of the appellee in' this respect, it would deepen the mire through which the administration of the divorce law is too often drawn. The burden laid upon the courts to administer this law strictly according to its very spirit is necessarily an onerous one in default cases. False testimony may be adduced. Important facts may be withheld. The defaulting defendant offers the court no aid. Too often he desires that a decree of divorce be entered. It is, therefore, always possible that a decree may be found upon false testimony be the judge diligent as he may. If, therefore, a defendant thus willingly obtain his freedom from the marriage bond, either by collusion or by silence at the trial, there is much reason why the adverse findings of the decree against him should bind him for all time. Such a rule would tend at least to deter the evil practice. On the other hand, if he may temporarily assent to falsehood either by collusion or silence in order to enable a decree of divorce to be obtained, and then afterwards in his freedom from the bond, repudiate to his own advantage the facts upon which the decree of dissolution was entered, such a rule can tend only to the great reproach of the administration of the law.

6. Same: statute: alienation of affection. V. In the case at bar the plaintiff herein contends that the decree of divorce was obtained not only upon false allegations in the divorce petition, but that it was obtained by collusion between the parties . thereto, and that it is void therefore, as between the parties themselves. The testimony in the case is undisputed that the plaintiff herein counseled with and employed the attorney who brought the divorce suit for the wife against him. We do not think this fact aids the plaintiff in the present action. On the contrary, it furnishes an additional reason why he should be forbidden to show to his own advantage the falsity of a decree which he collusivély obtained. It is abhorrent to the judicial sense and subversive of legal morals that a defendant may. aid the plaintiff in ob-taming the solemn . conclusions of the court in the form- of a decree of divorce and may afterwards, in another action in the same court, flout the decree before the jury, and say, “Gentlemen, this is all false. The judge did the best he could, but we wanted the decree and we fooled him. I have never asked to set aside the decree and I do not ask it now. I only want you to say that its findings. are not true in fact, and that I was never guilty of any of the charges sustained against me.” It may be well to observe here that the facts appearing from the testimony in this record, if proved in the divorce proceeding, were abundant to sustain the allegations of cruel and inhuman treatment and to warrant the decree. The facts appearing here show more than was charged in the- divorce petition. The testimony adduced against the plaintiff herein in this action tended to show not only cruel conduct on his part toward his former wife, but tended strongly to show adultery. This testimony is all denied by the plaintiff, and especially does he deny any criminal relations with other women; although he admits his association with a strange woman on one occasion, which was clearly inconsistent with virtuous conduct, it clearly appearing that the woman in question was a lewd woman. We are not passing now upon the relative weight of the evidence. These general facts are mentioned only to throw light upon the applicability of the rule which we are discussing.

We reach the conclusion that the general rule that an adjudication. is binding only upon the parties thereto and their privies is not applicable to a divorce decree as broadly as to an ordinary adjudication which involves only private rights. Without attempting to define an exact rule applicable in all cases to divorce decrees, we reach the conclusion that under the undisputed showing in this case, the. plaintiff can -not be heard in this action' to impeach the verity.of .the'-decree of divorce nor to -deny the.grounds upon which the decree was obtained, for the purpose of avoiding the statutory forfeiture; and that he must be conclusively deemed to be the “guilty party.” For cases bearing upon the question, see Karren v. Karren, 25 Utah, 87 (69 Pac. 465, 60 L. R. A. 294, 95 Am. St. Rep. 815); Ellis v. Ellis, 55 Minn. 401 (56 N. W. 1056, 23 L. R. A. 287, 43 Am. St. Rep. 514); Moor v. Moor, (Tex. Civ. App.) 63 S. W. 347; Gordon v. Dickison, 131 Ill. 141 (23 N. E. 439) ; Orth v. Orth, 69 Mich. 158 (37 N. W. 67).

7. Same: criminal conversation. VI. We turn now to another phase of the discussion. In Wood v. Mathews, 47 Iowa, 409, it was held that the plaintiff therein might maintain an action for damages against defendant for criminal conversation with his former wife during the marriage, . ° even though the wile had obtained a decree of divorce against the suing plaintiff before the commencement of his action for damages. It is properly argued that the reasoning which applies section 3181 of the Code to the present action would necessarily require the application of the same secton to an action for criminal conversation. Such an application of the statute would run counter to the holding in the above case. This argument has much force, and we have given it much consideration. An examination of the opinion in the Wood case and the record upon which the case was submitted discloses the fact that the attention of the court was not directed at all to the statutory provision which is now under consideration and the case was manifestly decided without reference thereto. The point which appears to have been decided in the opinion was impliedly conceded by appellant in his argument, and the opinion of the court consists' of only a dozen lines. It is urged by appellant that inasmuch as the point now presented was not considered in that case and inasmuch as no rule of property was settled thereby, the cited case should not foreclose our present consideration of the statute,, and that in such ease we should not deem ourselves bound by the opinion in the prior case. Cases tending to support this contention are: Washburn v. Insurance Co., 110 Iowa, 423; Blackman v. Wadsworth, 65 Iowa, 80; Remey v. R. R. Co., 116 Iowa, 133. The decision in the Wood case is announced without discussion and purports to be based upon two precedents: Dickerman v. Graves, 6 Cush. (Mass.) 308 (53 Am. Dec. 41), and Ratcliff v. Wales, 1 Hill (N. Y.) 63. Strange to say, neither case gives the slightest support to the proposition now under consideration, nor was there: at that time any precedent in the- books in support of', the same.

We think, however, that we are not called upon at the present, time to say whether the Wood case should be overruled. As- before indicated, the present action is not an action for criminal conversation. The case presented by the petition is one of simple, alienation by alleged acts and arts not. in. themselves criminal.. Such an . action is essentially different in its nature from an action, for criminal conversation, although both contain some elements in. common.. The acts and arts charged in the petition herein were in. themselves not actionable. They could only become so when they 'should result in the alienation of. the affections of plaintiff’s, wife; whereas an act of adultery .which furnishes the basis of an action for criminal conversation is in itself immediately criminal and actionable, and a cause of action based thereon- is not necessarily dependent for its maintenance upon the future relations of the parties to the marriage. Dor a discussion of the distinction between the two actions, see Kroessin v. Keller, 60 Minn. 372 (62 N. W. 438, 27 L. R. A. 685, 51 Am. St. Rep. 533) ; Houghton v. Rice, 174 Mass. 366 (54 N. E. 843, 47 L. R. A. 310, 75 Am. St. Rep. 351); Crocker v. Crocker (C. C.) 98 Fed. 702; note to Nolins v. Pearson, 4 L. R. A. (N. S.) 643. The distinction is recognized, also, in Wood v. Mathews, supra. If, therefore, we should feel hound to follow the case of Wood v. Mathews, and thereby to ignore the statute under consideration in its application to an action for criminal conversation under the rule of stare decisis, it does not follow that we should be carried beyond the Wood case by mere force of analogy and refuse to apply the statute to a case of simple alienation where no criminality is 'involved. There are some cogent reasons remaining for the application of the statute to a simple alienation case which do not apply to an action for criminal conversation. If the acts complained of are actionable only as they result in the alienation of the affections of the wife, and if, on the other hand, the plaintiff himself has been guilty of such cruel conduct as to endanger the life of his wife, how is he to say that such cruel conduct did not contribute to the alienation of which he complains ? Christiansen v. Thompson, 123 Iowa, 717. Without deciding, therefore, whether Wood v. Mathews, supra, should be overruled, we only hold now that w.e will not extend the holding there made to an alienation case not involving criminal conversation'. It may be noted here, that the only alleged precedents which are brought ■ to our attention wherein it is claimed that the “guilty party” in a divorce decree was' permitted to maintain an action for •damages for loss, of - affections of the wife, are Michael v. Dunkel, 84 Ind. 544 (43 Am. Rep. 100)-; Wales v. Miner, 89 Ind. 118; Prettyman v. Williamson, 1 Pennewill (Del.) 224 (39 Atl. 731). ■ Only the- first citation, is in point. In the second (Wales v: Miner, 89 Ind.. 118) the ■ divorce was decreed to the husband, plaintiff in the damage suit; although the divorce suit had. been commenced by his wife.. The plaintiff in the damage suit was, therefore) not'the . ‘.‘guilty party’5 under the decree.'

In-'the Prettyman case, 1 Pennewill (Del.) 224. (39 Atl. 731), no adjudication or decree was' involved. • .After the commencement of the alienation suit the Legislature enacted an act divorcing plaintiff and his wife from the bonds of matrimony. Whether such enactment included any finding of facts does not appear. In the statement of the issues by the court in the aliena'tion case, it is referred to as follows: “An act of the General Assembly of the state passed May 26, 1897, divorcing the said Wm. F. Prettyman and his wife from the bonds of matrimony, and which act the defendant contends constitutes a bar to the present action, which was commenced May 5, 1897.” The holding or opinion in the Prettyman case was that of the Superior Court sitting as a trial court, and was not the holding of the Supreme Court.

Neither of the two states where these decisions were had (Indiana and Delaware) had any statute corresponding to section 3181. All of the cases cited were cases based upon criminal conversation. No case is brought to our attention from any state wherein a “guilty party” in a divorce decree ever maintained an action for damages for simple alienation of affections as distinguished from criminal conversation. The case at bar is, therefore, unique in that respect, and opens a new door of litigation.

In Gleason v. Knapp, 56 Mich., 291 (22 N. W. 865, 56 Am. Rep. 388), the plaintiff who brought an action for criminal conversation was nonsuited by the Supreme Court of Michigan because his wife had obtained a decree of divorce against him prior to the bringing of the action. Michigan had no statute corresponding to section 3181, but the holding was based upon the broad ground that inasmuch as he failed to plead such fact in the divorce action he could not be heard to complain of it later in the form of an action for damages; it appearing that he knew of the alleged adultery before the decree was obtained. It should be said for the case at bar that the plaintiff claims that he learned of the defendant’s acts for the most part after the decree of divorce.

In the discussion of the questions here involved, we have not attempted to deal with specific exceptions or assignments of error. The questions discussed were all involved and presented in the pleadings, in the admission of testimony, and in instructions given and refused, and proper exceptions were taken. ■ The conclusions we have reached upon the questions here discussed, are decisive. If we are right therein a verdict should have been directed for the defendant. Many other questions are argued which we need not discuss in view of the foregoing conclusions reached. We are disposed, however, to say that if there had been no other error in the record a new trial ought to have been granted because of the excessive character of the verdict.

VII. Finally our conclusions may be summed up in brief form as follows: (1) That the right of action for damages for alienation of affection is a “right acquired by the marriage” within the meaning of section 3181 of the Code. That .by the terms of this statute the “guilty party” forfeits such right. (2) That the forfeiture declared by the statute must be recognized by the court regardless of any advantage resulting thereby to any deendant. This is so not because of .any affirmative right conferred on the defendant, but because of the absence of right in the plaintiff. And the forfeiture is properly pleadable as such by a defendant. (3) That the decree of divorce shown in this record fixed the status of the plaintiff herein as the “guilty party” therein within the meaning of said section 3181. The question at this point is not so much whether the decree is conclusive as between plaintiff herein and third parties, and as affecting alleged affirmative rights of such third parties, but whether the decree is conclusive upon the plaintiff himself as bringing him within the operation of the statute in question. We hold it to be conclusive upon plaintiff in the latter' respect, and that he became thereby subject instanter to the forfeit-lire declared by the statute. (4) That plaintiff’s plea that the divorce was obtained by his own collusion will not avail to relieve him from its conclusiveness while it remains in force. (5) We recognize that our conclusions herein are not in harmony with the result announced ’in Wood v. Mathews, 47 Iowa, 409. In that case, however, the statute under consideration was not brought to the attention of the court either by pleading or argument, nor did the court assume to construe the statute nor to pass upon it in any way. It was manifestly overlooked both by counsel and court. The point was decided without discussion and erroneously based upon two supposed precedents which were not' such in fact. Under these circumstances we would not be justified in ignoring the statute under' the authority of the Wood case.

VIII. The foregoing represents the views of only a majority of the court, as will appear from the dissenting opinion filed herewith. In view of some features of the discussion appearing in the dissent, the writer hereof deems it appropriate to add a few further observations without assuming at this point to speak for any other member of the court. The dissent is professedly emphatic and pei’r meated with feeling. It is unfortunate at best, though sometimes inevitable, that the majority, opinion should appear to the minority, not only as erroneous, but as absurd. Such a situation doubtless renders both the emphasis and feeling of a dissenting opinion quite pardonable. But it calls for scrupulously fair argument from the dissent as well as from the majority lest the majority opinion be made to appear other than it really is. To the view of the writer the dissenting opinion is fairly subject to question in this respect at -one or two points.

On the general proposition of the majority that the “guilty party” may not maintain this action it is said in the dissent that “there are very many eases which hold exactly to the contrary.” In support .of this .emphatic stater ' ment ■ several citations are made. As to the first three citations, we have already commented 'in the foregoing pages. As to the additional citations thus made, nearly all of them are erroneous in fact. Reference is now had to the following cases thus cited therein: Postlewaite v. Postlewaite, 1 Ind. App. 473 (28 N. E. 99) ; Clow v. Chapman, 125 Mo. 101 (28 S. W. 328, 26 L. R. A. 412, 46 Am. St. Rep. 468) ; Keen v. Keen, 49 Or. 362 (90 Pac. 147, 10 L. R. A. (N. S.) 504); Beach v. Brown, 20 Wash. 266 (55 Pac. 46, 43 L. R. A, 114, 72 Am. St. Rep. 98); Haynes v. Nowlin, 129 Ind. 581 (29 N. E. 389, 14 L. R. A. 787, 28 Am. St. Rep. 213); Smith v. Smith, 98 Tenn. 101 (38 S. W. 439, 60 Am. St. Rep. 838). None of the above citations sustain the proposition. In none of these cases does the “guilty party” to a divorce appear as plaintiff. In each of the first four the plaintiff in the damage case had obtained the decree of divorce. In the Haynes ease the plaintiff was a married woman, and brought her action for alienation during the existence ■of the marriage. The Smith case was like the Haynes case in that the action was brought by a married woman as plaintiff during the existence of the marriage relation. It may be stated here, also, that the case of Knickerbocker v. Worthing, 138 Mich. 224, (101 N. W. 540), was an action for criminal conversation, and was brought and tried in the lower court during the existence of the marriage relation. Th'e' plaintiff therein had previously defended successfully in the lower court a divorce suit brought against him by his wife. The wife prosecuted an appeal to the Supreme Court and obtained a reversal of the decree below. Before such reversal was obtained,' however, the plaintiff husband had prosecuted to judg* ment his case for criminal conversation. '

■Of course, in view of the fact that the majority opinion is based upon our statute, the question -of outside authorities .is .not controlling, although appropriate. And-in view of the claim made in the dissent that the majority puts the statute to an “unholy service” and operates as a protection to “infamy,” and in view of the call that is made upon the Legislature for relief from the operation of the statute as so construed, an examination of the authorities outside of Iowa is quite interesting. What is disclosed thereby? There are divorces abundant and too many. There are alienation suits — -hundreds of them; perhaps thousands. By whom havé these alienation suits been maintained ? Those maintained by the “guilty party” after divorce can be counted on the hand, with a margin to spare. ■ In no less than forty states such a suit by the “guilty party” is unknown to their reports. And this, too, in the absence of statute in most of such states. Is this a record of infamy? “The absence of precedent is precedent.” Thomas v. Adams Ex. Co., 1 Pennewill (Del.) 142 (39 Atl. 1015).

Without pressing the query whether the call for legislative- relief, above referred to, does not put a dissenting-opinion to an inappropriate function, it is sufficient to say now that the question of the propriety of the statute lies wholly within the legislative judgment. While the statute remains it must be given effect by the court. It is too definite and substantial to be blown away by mere indignation or to be reduced to ashes by heat of denunciation.

The statement of the dissent that the holding of the majority is made to depend “upon a supposed rule of public policy or by some species of estoppel” is not accurate nor quite fair. The majority holding is based upon the statute and upon that alone as all-sufficient. The only question of public policy involved is that of the statute; and the only question of estoppel involved is that which inheres in the decree of divorce. These particular terms are not used in the majority opinion, but originate in’the dissent. The extended discussion on these subjects is largely based upon a mistaken construction of the majority holding. Much of it is not fairly applicable to the majority holding, but is a deflection of the argument toward an improvised target. In so far as the legislative policy involved in the statute is called in question, we defend it ■ as appropriate and sound.

8 Appeal: argument: nonconformity with rules. IX. The defendant has moved to strike appellant’s argument for want .qf conformity to the rules and such motion has been submitted with the case. We think the motion not well taken. Appellant’s argument presents some_ formal departure from -rules in its method of presenting the case. The real spirit of the rules, however, is complied with. The case is very voluminous, having occupied six weeks’ time in its trial. Its presentation here as well as the consideration of it by us has been very arduous. It has been presented to us by both sides with great thoroughness and with exceptional clearness. The motion to strike appellant’s argument will therefore be overruled.

For the reasons indicated, the judgment below is reversed.