Bennett v. Terry

• Decision Date: 08 November 1927
• Docket Number: No. 20046.,20046.
• Citation: 299 S.W. 147
• Parties: BENNETT v. TERRY Public Administrator et al.
• Court: Missouri Court of Appeals

299 S.W. 147

BENNETT v. TERRY Public Administrator et al.

No. 20046.

St. Louis Court of Appeals, Missouri.

November 8, 1927.

Appeal from Circuit Court, St. Louis County; Claude O. Pearcy, Special Judge.

"Not to be officially published."

Suit by Amy M. Mosberger Bennett against Edward W. Terry, Public Administrator of St. Louis County, and as such in charge of the estate of William A. Mosberger, deceased, and others. Decree dismissing plaintiff's petition, and she appeals. Affirmed.

Anderson & Whittington, of St. Louis, for appellant.

E. McD. Stevens, of Clayton, for respondents.

DAUES, P. J.

This is a suit in equity to set aside a default decree of divorce. The case originated in St. Louis county and was first heard before the judge of division No. 2 of the circuit court of that county. The result was a decree in favor of defendants. Thereupon the court sustained a motion for new trial, and the judge of said court immediately disqualified himself, and a circuit judge of the city of St. Louis was duly called in as a special judge before whom this trial was had. Again there was a decree dismissing plaintiff's petition. Plaintiff has appealed. The instant case was filed December 28, 1923. The divorce suit, which is in controversy, was filed October 25, 1920, in St. Louis county, and the decree of divorce was entered in favor of William A. Mosberger, plaintiff, and against Amy M. Mosberger, defendant, on February 1, 1921. The plaintiff in that case, William A. Mosberger, died July 29, 1923, and accordingly his administrator and heirs are the defendants in this suit.

The defendant in the divorce suit, plaintiff here, was married to Carlos Bennett on October 2, 1925, so that she now appears as plaintiff here under the name of Amy M. Mosberger Bennett.

The petition in the divorce suit charges that Mosberger and appellant were married on February 7, 1911; that he took his wife to his mother's home, where she lived with him until March 9, 1911, when appellant left him, she being dissatisfied with her surroundings ; that he lived with her for a short While at her father's home. The petition then charges gross indignities against the wife and an entire lack of affection for him; that appellant instituted a suit for divorce against him in the city of St. Louis, where she and her parents lived. This suit was filed September 11, 1911, but that suit was later dismissed by her. It is then alleged that appellant left the state of Missouri and took up temporary residence in the British Colonies and also in the state of California, and that she did not return until February, 1914; that when she returned in February, 1914, she went to the Legal Aid Bureau, maintained by the city of St. Louis, and caused Mosberger to be summoned to face her complaint that he would not support her. It is alleged that she there stated that she would not live with him; that subsequently the prosecuting attorney of the city of St. Louis again summoned him; and that appellant in the presence of her mother and some other person again declined to live with her husband. It is then alleged that he made repeated efforts to obtain a reconciliation, but to no avail; that appellant threatened to have him arrested if he did not desist in such efforts.

Summons was issued in that case which contains a scrivener's mistake. The plaintiff being William A. Mosberger and the defendant being Amy M. Mosberger, the body of the summons commanded the sheriff to summon defendant, but the name of William A. Mosberger is written therein as being the defendant. However, on the outside wrapper of the copy of the summons and petition given the sheriff of the city of St. Louis there is clearly written in large letters, "Amy M. Mosberger, 4447 Ashland avenue." This was the direction and the address of the person to be summoned given the sheriff. When the summons was returned, the following appears thereon:

"After due and diligent search the within named defendant, Amy M. Mosberger, cannot be found in the city of St. Louis, Mo." Signed by the sheriff through his deputy.

Thereupon the usual affidavit was made by plaintiff in that case that defendant has "concealed, absconded, and absented herself from her usual place of abode in the city of St. Louis," so that the ordinary process of law cannot be served upon her in this city and praying for an order of publication. The order of publication followed; proof of publication was made; the case was called; and a decree was entered in favor of plaintiff granting him an absolute divorce and restoring him to all rights and privileges of a single person.

It might be well to state that the summons in the divorce case was delivered to the sheriff on October 25, 1920; it was returnable to the January term, 1921, of the circuit court of St. Louis county, and the sheriff made his return January 10, 1921. The affidavit of plaintiff in that case as to the concealment and absconding of defendant was made November 23, 1920.

It appears that defendant In her suit against Mosberger in the city of St. Louis in 1917 obtained a temporary allowance for alimony pendente lite, the amount paid and allowed against the estate (the exact time this allowance ran we are unable to determine from this record) being about $3,000. This allowance is not challenged.

In the petition now before us, appellant claims that fraud was practiced upon her by Mosberger in obtaining the divorce; that she was not absent from the state at the time alleged in the affidavit for an order of publication, but that she was in the city of St. Louis, living at 4447 Ashland avenue with her mother from the time the divorce petition was filed until the decree was granted, and, of course, at the time the affidavit was made, and that Mosberger knew this. It is further alleged that the affidavit was prematurely filed; that the court never acquired any jurisdiction in the divorce case; that the petdon is insufficient as a matter of law to constitute notice to the appellant; and, further, that appellant never knew of the husband's divorce proceedings. The petition states that Mosberger died leaving real estate and personal property, but it is alleged that the value of same is unknown to the appellant, and prays that the divorce decree be set aside and for restitution of her rights as a widow.

There was some oral testimony adduced at the trial, much of which is unimportant. It was shown, however, that appellant was a highly literate woman whose attainments in literature had reached the press and magazines. It is in evidence, too, that appellant was known as Amy Miller even after her marriage to Mosberger, some explaining that the marriage relation was so short that she did not even change her name.

One witness, Lorris Rasmussen, testified that he lived at 4523 Ashland avenue;...