Anderson v. Dyer

• Citation: 456 S.W.2d 808
• Decision Date: 26 June 1970
• Docket Number: No. 8989,8989
• Parties: Early Lee ANDERSON, Plaintiff-Appellant, v. Rose B. DYER and Rose B. Dyer, guardian of Elizabeth J. Dyer, a minor, Defendants-Respondents, and Annie Anderson, Defendant.
• Court: Court of Appeal of Missouri (US)

Page 808

456 S.W.2d 808

Early Lee ANDERSON, Plaintiff-Appellant, v. Rose B. DYER and Rose B. Dyer, guardian of Elizabeth J Dyer, a minor, Defendants-Respondents and Annie Anderson, Defendant.

No. 8989.

Springfield Court of Appeals, Missouri.

June 26, 1970.

Motion for Rehearing or to Transfer to Supreme Court Denied

July 21, 1970.

J. W. Grossenheider, Lebanon, for plaintiff-appellant.

Arthur B. Cohn, Waynesville, for defendants-respondents.

TITUS, Presiding Judge.

Oliver Anderson was awarded a default divorce from Early Lee Anderson by the Circuit Court of Pulaski County on June 23, 1958. Ten years and almost eight months thereafter, or on February 19, 1969, Early Lee filed this action to set aside the divorce for fraud. Following trial, Early Lee's petition was dismissed for the stated reason that her action was barred by the statute of limitations. The trial court eschewed the '(o)ther affirmative defenses * * * filed by the answering defendants (because they were) academic in view of the governing effect of Section 516.120(5).' ¹ Early Lee appealed and contends, inter alia, her suit was not barred since 'the cause of action did not arise until (her) discovery of the fraud * * * and the action was commenced within five years after discovery.' She also asserts the trial court erred when it 'chose to disregard Section 516.280.'

Oliver expired before institution of this action and, from the scant record on the subject, we deduce that death overtook him subsequent to 1966 and prior to October 1968. We are not informed of the location of Oliver's residence at the time he died nor the place where death occurred; likewise, there is no suggestion, either by pleading or proof, that a personal representative was ever appointed for the decedent or that any effort had been made to administer his estate. Neither did Early Lee specifically plead or prove why she deemed it necessary that the divorce be set aside in face of the indisputable fact that Oliver's demise served to dissolve the marriage in any event, and she did not directly indicate that an annulment of the divorce would endow her with any rights or property interests. Defendants named in the cause were Annie Anderson (the now adult daughter born of the marriage of Oliver and Early Lee) and Rose B. Dyer (Oliver's mother), who was sued individually and as the guardian of Oliver's alleged minor illegitimate child. Annie did not plead.

Early Lee's petition averred that in the divorce action Oliver had 'fraudulently executed an affidavit for service by publication (wherein he stated the 'Present Known Address' of Early Lee was 'unknown') and fraudulently obtained said divorce based upon service by publication (because) he at all times * * * knew the exact location of (Early Lee) and fraudulently and willfully kept her from knowing that he had instituted a divorce action against her and was about to obtain a decree of divorce.' The petition further asserted that 'immediately upon learning of this purported decree (Early Lee) made arrangements for the institution of this action.' Mrs. Dyer's motion to dismiss the petition because it did not state a cause of action and was barred by limitations was overruled. She then filed an answer which denied the material allegations of the petition and affirmatively pleaded that the case was barred by the statute of limitations, that defendants were improper parties and that the petition did not state a claim upon which relief could be granted. No reply was made to the answer and it is to be noted that Early Lee did not plead any exceptions relieving her from the statute of limitations (Ludwig v. Scott, Mo., 65 S.W.2d 1034, 1035(3)), i.e., Early Lee did not allege when she first learned of the purported fraud or why she did not make discovery sooner, and there is no averment as to what Oliver may have done that prevented her from learning of the divorce before she did. Foster v. Petree, 347 Mo. 992, 994(3), 149 S.W.2d 851, 853(4); Silver v. Kessinger, Mo.App., 149 S.W.2d 890, 892(1). However, no objection was made that any of the evidence (all offered by Early Lee) went to prove an unpleaded exception to the statute, so, after judgment, the petition will be treated as having been amended to include the exceptions shown by the proof. V.A.M.R. Rule 55.54, V.A.M.S. § 509.500; Greene v. Morse, Mo.App., 375 S.W.2d 411, 418(11).

The evidence consisted of the deposition testimony of Early Lee and her daughter, Annie, and exhibits anent the divorce proceedings and decree. Mrs. Dyer's counsel objected to the testimony on the ground that it violated the 'dead man's statute' (Sec. 491.010), but we need not consider the objection for the purposes of this appeal. The testimony reveals that Oliver was a member of the Army during the times concerned and that Early Lee and Annie had resided continuously in the same apartment in Jamaica, New York, from August 1956 until they deposed in May 1969. In substance and intendment, the testimony was that Oliver, both before the June 23, 1958, divorce and thereafter until 1966, had visited with and written to Early Lee at the apartment and was, therefore, fully cognizant of her whereabouts and mailing address during that period. Early Lee and Annie further related that Oliver's correspondence and personal visitations continued after the divorce and that he at no time, by word or conduct, made them aware the marriage had terminated. They additionally stated no knowledge of the divorce came to them until 'October, 1968,' which was after Oliver had died.

The statutes with which we are principally concerned are:

Sec. 516.100--'Civil actions, * * * can only be commenced within the periods prescribed in the following sections, after the causes of action shall have accrued; * * *.'

Sec. 516.120--'Within five years: * * * (5) An action for relief on the ground of fraud, the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud.' ²

Sec. 516.280--'If any person, by absconding or concealing himself, or by any other improper act, prevent the commencement of an action, such action may be commenced within the time herein limited, after the commencement of such action shall have ceased to be so prevented.'

Although the bipartition of Sec. 516.120(5) has not been recognized in the reported cases, the uniqueness of the composition of this section may not be properly ignored. The initial segment of Sec. 516.120(5) is simply a statute of limitations which imposes a five year limit on the commencement of actions brought for relief on the ground of fraud; the concluding portion constitutes a ten-year artificial lacuna fixed by the legislature on the accrual of the cause of action, i.e., fraud actions are deemed not to accrue during the ten-year suspension period until the discovery of the fraud. As a general rule, a cause of action accrues the moment the right to commerce the action comes into existence and the statute of limitations starts to run from that time. ³ In the instant matter, Early Lee's right to set aside the divorce for fraud actually accrued when the decree was entered on June 23, 1958. However, for the purpose of determining when the five year statute of limitations would commence to run, the last part of Sec. 516.120(5) artificially deferred the accrual of Early Lee's cause of action until she discovered the fraud at any time within ten years of its perpetration. ⁴ If the fraud was not discovered or discoverable during the ten-year hiatus provided by the legislature, then the cause of action would be deemed to have accrued at the termination of such period and the statute of limitations would commence to run from that time, thereby permitting a maximum of fifteen years for commencement of the suit. Gromacki v. Armour & Co., W.D.Mo., 76 F.Supp. 752, 754(3). In other words, 'the action is to be brought within fifteen years in any event and if the fraud be discovered (or is discoverable) prior to the lapse of ten years, then within five years after its discovery.' Foster v. Pettijohn, 358 Mo. 84, 88, 213 S.W.2d 487, 490.

To better understand Sec. 516.120(5) and its relation to other limitation sections and accrual principles, we are authorized to resort to history. Gross v. Merchants-Produce Bank, Mo.App., 390 S.W.2d 591, 594(4). The limitation act passed by the General Assembly in 1835 (RSMo 1835, pp. 392--396) 'set the pattern for our present statutory scheme.' Kauchick v. Williams, Mo. (banc), 435 S.W.2d 342, 346. Save for a few superfluous words now deleted, art. III, § 8, p. 396, of the 1835 enactment was in the language of present Sec. 516.280, supra, but, interestingly enough, the act contained no mention of 'an action for relief on the ground of fraud.' This void was partially filled by the Laws of 1849, p. 74, when art. II, § 4, was amended to read: 'Within five years: * * * Sixth, an action for relief on the ground of fraud--the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party of the facts constituting the fraud.' Especial note should be made that the phrase 'at any time within ten years,' as contained in Sec. 516.120(5), was missing from the 1849 section. In commenting on this particular addition (which continued in the same form through the Laws of 1857, p. 78), our Supreme Court said in Hunter v. Hunter, 50 Mo. 445, 452, that '(w) here the case is one of fraud, the statute in no case will commence to run till the discovery of the fraud. This was always the equity doctrine, and is still the doctrine under our code.' Thus at this stage of the legislation, it mattered little whether reliance was made on the sixth clause of the 1849 amendment, upon the equity doctrine or on the other 'improper act' ⁵ in what is now Sec. 516.280, for the cause of action did not accrue or, stated otherwise, the limitation did...