Gane v. Gane

CURTIS, J. Plaintiff brought an action for divorce against defendant, basing his grounds upon certain acts of cruelty which he alleged were committed by the defendant. Defendant appeared by answer and denied all the allegations of plaintiff’s complaint in which she was charged with the commission of acts of cruelty. She also, at the time of filing said answer, filed a cross-complaint for divorce and alleged as grounds of divorce acts of cruelty on the part of the plaintiff. A property settlement was thereafter agreed upon and was signed by both the plaintiff and defendant. Plaintiff withdrew his complaint and the case went to trial upon the allegations of defendant’s cross-complaint. Plaintiff did not appear at the trial. Defendant was present in person and by [146]counsel. She was sworn as a witness in the ease and testified to the facts set forth in her cross-complaint. A witness on behalf of defendant corroborated defendant in all the essential allegations of the cross-complaint. At the conclusion of the trial the court ordered judgment upon defendant’s cross-complaint, and in due time a decree was signed and filed by the judge hearing the action, awarding defendant an interlocutory decree of divorce and alimony in the sum of fifty dollars per month. The decree in respect to alimony followed the property settlement theretofore entered into by the parties to the action, except in one respect. The property settlement pro-1 vided that the plaintiff should pay to defendant the sum of fifty dollars per month for a period of two years. The trial court refused to limit the time in which plaintiff should pay the defendant alimony to two years, and by the decree placed no limit upon the time during which the defendant should receive alimony. The interlocutory decree was entered Au- ' gust 16, 1934. On October 29, 1934, a substitution of attorneys for the defendant was filed whereby Lelía R. Leep, an attorney-at-law, was substituted for and in the place of H. 0. Mundhenk as attorney for the defendant. Thereafter the defendant through her newly appointed attorney gave notice of a motion to set aside the interlocutory decree and property settlement on the ground that the same was obtained by undue influence. This motion was noticed for hearing on November 2, 1934. It was evidently continued to November 17, 1934, when it was heard in open court upon evidence presented by the respective parties to this action. At the conclusion of the hearing the court submitted the matter and on February 5, 1935, denied said motion. From the order denying said motion to set aside said interlocutory judgment the defendant has appealed.