Caddell v. Gibson

• Citation: 222 S.W. 873,204 Mo.App. 182
• Parties: MARGARET CADDELL, Appellant, v. A. E. GIBSON Administrator of Estate of G. W. Caddell, Deceased, Respondent
• Decision Date: 14 June 1920
• Court: Court of Appeals of Kansas

222 S.W. 873

204 Mo.App. 182

MARGARET CADDELL, Appellant, v. A. E. GIBSON Administrator of Estate of G. W. Caddell, Deceased, Respondent

Court of Appeals of Missouri, Kansas City

June 14, 1920

Appeal from Livingston Circuit Court.--Hon. Arch B. Davis, Judge.

REVERSED.

Judgment reversed.

Scott J. Miller and Thos. H. Hicklin for appellant.

No brief for respondent.

OPINION

ELLISON, P. J.

This action was instituted by plaintiff for a divorce. Defendant filed a cross-bill. A decree was rendered for him on the cross-bill. Plaintiff appealed to this court.

After the appeal was taken defendant died and the cause was revived against the administrator of his estate, and it is suggested that as defendant has died, the action being for divorce nothing can be done save to dismiss the appeal.

It appears that defendant was possessed of property, in which instance, justice requires that the case be heard, not as regards the mere dissolving the relation of husband and wife for death has done that, but that the plaintiff, if she has had a divorce adjudged against her erroneously, may have such adjudication set aside to the end that she may assert a widow's claim in his estate which, if the judgment stands unreversed, she could not do. It requires but a moments reflection to see the rank injustice which might be done an innocent woman. The death of her husband ought not, ipso facto, to deprive her of her legal rights.

In Danforth v. Danforth, 111 Ill. 236, 243, the Supreme Court of Illinois said: "It is claimed that the death of either party puts an end to all further legal proceedings. This is true where the death takes place before any final decree of divorce. [Ewald v. Corbett, 32 Cal. 493; Swan v. Harrison, 2 Coldw. 534; Pearson v Darrington, 32 Ala. 227.] But where a decree of divorce has been improperly obtained, and the proceedings are erroneous, the party whose property rights have been injuriously affected by such decree ought not to be concluded by reason of the subsequent death of the other party. While both parties live, a writ of error lies to reverse an erroneous decree of divorce, the effect of which is to restore both parties to their former status of husband and wife, in law, and after the death of one it ought to lie in favor of the other party, not for the same purpose, but to restore the survivor to his or her rights of property divested erroneously by the decree. On the reversal of a decree of divorce, the parties will be placed in the position they occupied before the decree was entered, and if one of them has died between the date of the decree of divorce and its reversal, the survivor procuring the reversal will be entitled to all rights of succession or dower, and the like, in the estate of the other, the same as if no divorce had ever been had; but in such case the court need not ordinarily remand the case, as no other decree of divorce can ever be had."

And so the law is declared in Strickland v. Strickland, 80 Ark. 451, 97 S.W. 659; Nickerson v. Nickerson, 34 Ore. 1, 48 P. 423 and Thomas v. Thomas, 57 Md. 504. To the same effect is 1 Corpus Juris, 208, sec. 404, and 171, sec. 289.

We have examined the evidence in the case and find that the decree cannot be sustained. It appears that plaintiff was defendant's second wife. That before the death of his first wife he employed plaintiff (who was then nineteen years old) as his...