Burge v. Burge

Citation67 S.W. 703,94 Mo.App. 15
PartiesLOUISA BURGE, Appellant, v. WM. O. BURGE, Administrator, etc., Respondent
Decision Date07 April 1902
CourtKansas Court of Appeals

Appeal from Cooper Circuit Court.--Hon. Jas. E. Hazell, Judge.

AFFIRMED.

Judgment affirmed.

W. G. & G. T. Pendleton and M. T. January for appellant.

(1) A judgment or decree of a court of this State can not be attacked collaterally, except on the ground of want of jurisdiction. Rosenheim v. Hartsock, 90 Mo. 357; Black on Judgments, sec. 803; Winningham v Trueblood, 149 Mo. 572. (2) Absence of jurisdiction over the subject-matter or person can only be shown from the record, and can not be shown by matter in pais. Black on Judgments, sec. 271; Reed Bros. v. Nicholson, 158 Mo. 624; Cox v. Boyce, 152 Mo. 576. (3) Where jurisdiction is dependent upon facts outside of the record the court rendering a judgment will be presumed to have found the facts conferring jurisdiction, and this presumption can not be disputed by oral testimony. Cox v. Boyce, 152 Mo. 576; Werz v. Werz, 11 Mo.App. 26; Van Vleet on Collateral Attack, sec. 62, p. 83; Hilbish v Hattel, 33 L. R. A. 783. (4) When a court has jurisdiction of a divorce suit, its decree can not be questioned on any ground in any other court in this State. R. S. 1899, sec. 2931; Mansfield v. Mansfield, 26 Mo. 163; Salisbury v. Salisbury, 92 Mo. 683. (5) A party who has accepted the benefits of a divorce is estopped to deny the authority of the court by which it was rendered. Ellis v. White, 61 Iowa 644; 1 Bishop on Marriage, Divorce and Separation, sec. 1470; Richeson v. Simmons, 47 Mo. 20; Asbury v. Powers, 65 S.W. 605. (6) A name is only a means of identity; Parry v. Woodson, 33 Mo. 347; Cruzen v. Stephens, 123 Mo. 337. (7) Other descriptive terms may help and correct a misnomer. 16 Am. and Eng. Ency. of Law (1 Ed.), 127; Cruzen v. Stephens, 123 Mo. 337; Tanning v. Kraphl, 68 Iowa 244; Lane v. Innes, 43 Minn. 137; Porter v. Stout, 73 Ind. 3; Preston v. Dunn, 25 Ala. 507; Schee v. LaGrange, 78 Iowa 101. (8) Abbreviations of the given name are so common, that without any violation of the laws of the land the courts may take judicial notice of them. Fenton v. Perkins, 3 Mo. 144; Exendine v. Morris, 8 Mo.App. 387; Weaver v. McElhenon, 13 Mo. 89. (9) The same is true of nicknames. Ellison v. Martin, 53 Mo. 575; Walter v. State, 105 Ind. 589; Shelbourne v. Rochester, 1 Pick. 470. (10) The names Emma, Emily and Emeline, are all derived from the same root and are commonly used interchangeably. Webster's International Dictionary, page 1905.

W. M. Williams and John Cosgrove for respondent.

(1) "All marriages when either of the parties has a former wife or husband living, shall be void, unless the former marriage shall have been dissolved." R. S. 1899, sec. 4313. (2) A man or woman who commences a suit for divorce must sue the defendant in his or her Christian name when the service is constructive. 2 Bishop on Marriage, Divorce and Separation, sec. 553 and note; 2 Nelson on Divorce and Separation, sec. 1052, p. 1012; R. S. 1899, sec. 579; Hubner v. Reickhoff, 72 N.W. 540, 103 Iowa 368, and cases cited. (3) The publication against "Emma" Burge, was insufficient, against "Emily" Burge. Troyer v. Wood, 96 Mo. 478; Chamberlain v. Blodgett, 96 Mo. 482; Whelen v. Weaver, 93 Mo. 430; Skelton v. Sackett, 91 Mo. 377; Corrigan v. Schmidt, 126 Mo. 304; Turner v. Gregory, 151 Mo. 100, and cases cited; 1 Black on Judgments, sec. 406; Heil and Lauers' Appeal, 40 Pa. St. 453; Clay v. O'Shea, 75 N.W. 115, 72 Minn. 105. The publication to "Emma" Burge is not aided by the statement that the suit is by "O. F." Burge. (4) The judgment obtained in the circuit court in Cedar county, on publication of notice in favor of O. F. Burge v. Emma Burge, can not, as a legal conclusion, be held to be a legal service on Emily Burge and therefore the court had no jurisdiction and the judgment is absolutely void and was subject to attack in any proceeding in which it is sought to be made effective. Turner v. Gregory, 151 Mo. 100; Hubner v. Reickhoff, 72 N.W. 540, 103 Iowa 368; Myer v. Kuhn, U.S.C. C. App. R. 298, and cases cited. (5) Appellant complains because respondent upon the trial in the circuit court offered parol evidence, to impeach the judgment of the Cedar Circuit Court. If it becomes necessary for appellant to sustain the judgment by parol evidence it should not be considered error for respondent to resort to the same kind of evidence to destroy it. But the court did not rule that such evidence was competent. (6) The fact that Mr. Davidson, who was attorney for Oscar F. Burge in the divorce suit against Emma Burge, testified that O. F. Burge often told him that his home was in Cooper county and that he wrote his name in a public hotel register giving his residence as Boonville, was not a disclosure of any confidential communication. They were matters of public notoriety. Standard Oil Co. v. Drug Co., 84 Mo.App. 76. (7) The appeal in this case can not be sustained. A person can not appeal from an order of court refusing letters of administration. State ex rel. v. Fowler, 108 Mo. 465.

OPINION

SMITH, P. J.

In the latter part of the year 1900, one O. F. Burge departed this life at the county of Cooper, in this State, first having made a last will and testament wherein he named and appointed two executors thereof, one of whom died and the other resigned. Afterwards, letters of administration with the will annexed were granted by the probate court of said county to the defendant herein, a son of the decedent, who qualified and took charge of the latter's estate. The plaintiff, who claims to be the widow of the decedent, did not apply for letters of administration on his estate until after the grant of letters to the defendant, when she appeared in the probate court and filed a motion wherein it was stated that she was the widow of the decedent; that she had the priority in the right to administer on said estate; that no citation to appear and administer had been served upon her, and that she had not renounced or waived her statutory right of administration; that without notice to her, letters had been granted to defendant, a son of the deceased, and that she therefore prayed the court to revoke the letters granted to said defendant and to grant the same to her.

This motion was sustained by the probate court and an order was made accordingly, from which the defendant appealed to the circuit court where there was a hearing which resulted in an order denying the plaintiff's motion. From this order the plaintiff has appealed.

I. At the very threshold, our right to review the several rulings of the trial court, assigned as error, is challenged on the ground that under the statute no appeal from the order of the court refusing to revoke the defendant's letters could be allowed.

When an appeal is taken from the decision of a probate court in any one of the cases specified in section 278, Revised Statutes 1899, and the transcript of the record and proceedings relating to the case with the original papers are filed in the office of the clerk of the circuit court, the latter court shall be possessed of the cause and shall proceed to hear, try and determine the same anew, without regarding any error, defect or other imperfection in the proceedings of the former. R. S. 1899, secs. 284, 285; Ferry v. McGowan, 68 Mo.App. 612. When a case is thus removed into the circuit court, it is not different than if it had been originally brought there. As to such case the circuit court stands in the place of the probate court and exercises a like jurisdiction. An appeal taken from any order or judgment of the circuit court in such cases is in effect the same as if it had been made or given in the probate court. If an appeal would not lie from it if made by the probate court it would not of course lie if such order be made by the circuit court; or, in other words, if an appeal does lie from such an order when made by one court, it would not in the other.

The defendant's challenge of the plaintiff's right to an appeal can not be upheld, for it has been authoritatively ruled that where the claim of a right under the statute to administer is denied by the probate court the claimant may have an appeal. State v. Collier, 62 Mo.App. 38, and State v. Fowler, 108 Mo. 465, 18 S.W. 968, hold no more than that an appeal does not lie from an order appointing an administrator, and as we have no such order here the application of the rule in that case can not be invoked by the defendant in this.

II. The issue of fact on which the case was made mainly to turn in the trial court was whether or not the plaintiff was the lawful wife of the decedent at the time of his death. It appears from the evidence that the decedent was thrice married. The first wife died, and it is claimed by the plaintiff that he was divorced from the second; and that the plaintiff being the third, survived him and is therefore his lawful widow.

To maintain the issue, the plaintiff put in evidence a certificate of her marriage with the decedent in 1892. The defendant then put in evidence a further certificate showing the solemnization of the marriage of decedent with Emily Buckmaster in 1888, coupled with parol evidence showing that she was alive at the time of the trial. The plaintiff then introduced the record of the proceedings of the circuit court of Cedar county, in this State, in a certain action wherein O. F. Burge was plaintiff and Emma Burge was defendant, from which it appears that a judgment was given therein on constructive notice, or notice by publication.

It is contended that the said record on its face shows that the court was without jurisdiction; that the divorce was granted upon an order of...

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