This appeal is from the ruling of the trial court denying the motion of the defendant to vacate and set aside a decree in a divorce action.
Plaintiff filed her verified petition October 22, 1925. Defendant, in good faith, filed his verified answer on December 12, 1925, in which he denied the allegations of the petition, in so far as they charged him with cruel and inhuman treatment of the plaintiff, but admitted that the plaintiff and defendant intermarried on the 15th day of May, 1920, at Cherokee, Iowa, and lived together as husband and wife for approximately four years; admitted writing certain letters to the plaintiff, but denied that he accused her therein of immorality; admitted that a *Page 90 child named Reba Radle was born to them; but denied every other material allegation of plaintiff's petition.
Temporary alimony and suit money were allowed pendente lite, in the sum of $150, which was thereafter paid by the defendant. The decree of divorce was entered December 17, 1925.
On the 11th day of January, 1926, one of the regular days of the November, 1925, term of the district court of Iowa in and for Cherokee County, and during the term in which said decree was entered, the defendant filed the motion in question, to set aside the decree, on the grounds that, during the trial of said cause, no witness was sworn on behalf of the plaintiff; that the plaintiff herself did not personally offer any testimony, at any time prior or subsequent to the entry of the decree; that no testimony of any kind was offered or adduced before the court at any time during the pendency of the action, in corroboration of testimony of the plaintiff, as required by law; that the defendant could not and did not give any attorney or any other person whomsoever the right or authority to enter or cause to be rendered or entered, the said pretended decree, as a default decree or otherwise; that the trial court was wholly without jurisdiction to render or enter said decree without the personal testimony of the plaintiff herself, and without her deposition or without any sworn testimony by any other witness whatsoever; and that the marital status existing between the parties to this action has not been severed, and the defendant has not been divorced from plaintiff in the manner required by law. The defendant asked that he be granted a trial on the merits at the next term of court, to wit, the February, 1926, term.
This motion was supported by the affidavit of the defendant, Frank Radle; and, upon the hearing on said motion, the testimony of plaintiff's attorney and the testimony of the former acting attorney for the defendant were taken, bearing on the proceedings had at and prior to the entry of said decree. No other record is before us on this appeal, aside from the pleadings in the original action.
It appears without contradiction that, at the time the divorce action was called for trial, counsel representing the plaintiff and the then counsel for the defendant were present, but that neither plaintiff nor defendant was in court, unless it may be said, upon the best recollection of counsel then appearing, that *Page 91 the parties litigant were near at hand, and subject to call. No witnesses were produced or sworn on the preliminary hearing when the allowance for alimony was made. Defendant's then counsel testified that the defendant never admitted to him "the charge or charges that she was making against him," and that the answer filed was "a good-faith answer in this case, denying the charges." Respective counsel did state to the presiding judge the nature and character of the evidence, which the court accepted as professional statements. No sworn evidence or testimony was offered upon the original hearing, either orally or by deposition. It is true that plaintiff's counsel was in possession of certain letters, which it is claimed were the foundation of plaintiff's allegations of cruel and inhuman treatment. The defendant, in answer, admitted writing certain letters to the plaintiff, and it may be inferred that the letters in court were the letters to which the answer refers; but the defendant denied, in answer, that he had accused her therein of immorality. The letters in possession of plaintiff's counsel were never identified, or offered in evidence upon the trial, but they were produced and handed to the trial court for inspection and reading.
The question for decision, from the viewpoint of appellant, under the facts herein stated, is: May a court grant a valid divorce to a plaintiff upon professional statements of counsel for the parties, without the introduction of evidence to sustain the allegations of plaintiff's petition? The answer must be found in the provisions of the statute governing divorce. The following sections (Code of 1924) have a material bearing on the question in issue:
"The petition must be verified by the plaintiff, and its allegations established by competent evidence." Section 10471.
"If the averments as to residence are not fully proved, the hearing shall proceed no further, and the action be dismissed by the court." Section 10473.
"No divorce shall be granted on the testimony of the plaintiff alone." Section 10474.
"Any judgment in a case pending, other than for divorce, which may be agreed upon between the parties interested therein, may at any time be entered, and if not done in open court, the judgment agreed to shall be in writing, signed, and filed with the clerk, who shall thereupon enter the same accordingly, and *Page 92 execution thereon may issue forthwith unless therein otherwise agreed upon." Section 11579.
The instant decree is not a default decree, as both plaintiff and defendant were represented in court by counsel. The decree is rather to be viewed as pro confesso by respective counsel; and, unless it may be said that the statements of respective counsel in this case made to the trial judge at the time of the trial can be considered as "competent evidence," within the purview of the statute, the motion of the defendant to set aside the decree should have been sustained. The defendant is standing upon his strict legal rights. There is no waiver or estoppel, nor is the doctrine of "clean finger nails," as expressed in Davenport v.Davenport (Iowa), 200 N.W. 612 (not officially reported), applicable.
Respecting defendant's cause for changing counsel, or the provocation for his filing the instant motion, it is not for this court to reason why. There is no intimation that any reflection is intended to be cast upon the trial court, nor is any criticism directed by present counsel for defendant against the attorneys who appeared for the respective parties on the trial. Ethical standards are not involved. Apparently the defendant now insists and demands that he have a trial on the issuable facts and on the merits of the case.
Our divorce statute is specific. Consent decrees in divorce matters are not recognized, and in the teeth of our statute, cannot be recognized. None of the prerequisites to a decree of divorce will be taken for granted. It is not the intendment of the law that a decree of divorce should be granted for the mere asking. Perry v. Perry, 199 Iowa 685, with cases cited. It must be granted, if at all, in conformity to statutory requirements. For example, it is mandatory that the petition be verified. Section 10471, Code of 1924. This section was enacted, "not for the benefit of defendants in actions for divorce, but as a hindrance to easy divorces, — a matter in which the state is concerned, — and it cannot be waived by the defendant." VanDuzer v. Van Duzer, 65 Iowa 625.
The legislation upon the subject of divorce is based on the idea that the status of marriage is indissoluble except for cause shown, and of the sufficiency of the cause the parties are not themselves to determine. Divorce is not one of private concern *Page 93 merely. Eikenbury v. Eikenbury, 33 Ind. App. 69 (70 N.E. 837). The interest of the public in divorce cases is such that the courts proceed with practically the same formality as though the action were being contested by the defendant, and do not grant a divorce unless the plaintiff's proof shows that he or she is entitled thereto. 9 Ruling Case Law 441; 19 Corpus Juris 149; 7 Standard Encyc. of Procedure 798 et seq.
"`A jealous anxiety to disregard every admission marks every step. Hence, no judgment passes by default, without proof; and if the defendant declines to appear, the courts are nevertheless bound to proceed with the same formality as if he were present and had maintained the keenest opposition.'" Hancock v. Hancock,55 Fla. 680 (15 L.R.A. [N.S.] 670).
In ordinary cases, the parties may agree as to what facts should be submitted to the court, and may waive any right they do not desire to exercise. Section 11579, Code of 1924. In divorce cases, the policy of the state demands that the marriage bond shall not be broken except for a sufficient and legal cause, designated in the statute. Fisher v. Fisher, 95 Md. 314 (93 Am. St. 334).
The Supreme Court of Alabama held that the admission or confession of the adultery in the answer would not authorize the court to decree a divorce without proof of that fact in the ordinary method provided by the rules of law. Richardson v.Richardson, 4 Port. (Ala.) 467 (30 Am. Dec. 538). See, also,Johnson v. Johnson, 122 Ark. 276 (182 S.W. 897).
In the case at bar, may this court, under the provisions of the statutes heretofore quoted, substitute what is termed the professional statement of counsel for "competent evidence," within the meaning of Section 10471? I think not. It is true that an attorney is an officer of the court. He is admitted to the enjoyment of certain privileges, not as a matter of right, but upon proof of qualifications of fitness, educational, legal, and moral. That professional statements and admissions of counsel are competent and binding as a matter of evidence in certain classes of cases, cannot be questioned. It is said in State v. Wilson,166 Iowa 309:
"It is elementary that admissions made in the course of judicial proceedings are substitutes for and dispense with actual proof of facts." *Page 94
To the same effect is the language of the opinion in Godwin v.State, 1 Boyce (Del.) 173 (74 A. 1101), wherein it is held that admissions made by counsel in professional capacity in good faith and at the trial in open court are accepted in lieu of testimony.
Divorce, however, is in a different category.
Reference is made to the status of a professional statement by counsel in Rice v. Griffith, 9 Iowa 539. In that case, a motion to set aside a judgment by default was involved. The action was for recovery on a promissory note. Upon the hearing of this motion, the trial court received the professional statement of the attorney, to the effect that, at the previous term, he had made an appearance for the defendants, through mistake. We said:
"The professional statement of the counsel, being received, is to be regarded as an affidavit."
In McMillan v. Osterson, 191 Iowa 983, an injunctive decree by default, restraining the defendant from maintaining a liquor nuisance, had been entered, and a motion was filed to vacate and set aside the decree. Upon discovery of the entry, defendant forthwith, and within term time, filed his motion, accompanied by an answer and by an affidavit of merits, together with an unsigned affidavit by his attorneys. Under the circumstances, the unsigned affidavit was viewed by this court "as a professional statement by counsel."
Upon a careful review of the record in the case at bar, I reluctantly reach the conclusion that the requirements of the statute have not been met. The defendant is in a position to assert strictly his legal rights. The motion to set aside the decree should have been sustained.
I would reverse.
VERMILION and MORLING, JJ., join in the dissent.