Carder v. Carder

• Decision Date: 22 May 1933
• Docket Number: No. 17694.,17694.
• Citation: 61 S.W.2d 388
• Court: Missouri Court of Appeals
• Parties: CARDER v. CARDER.<SMALL><SUP>*</SUP></SMALL> SAME v. CARDER et al.

61 S.W.2d 388

CARDER v. CARDER.^*

SAME v. CARDER et al.

No. 17694.

Kansas City Court of Appeals. Missouri.

May 22, 1933.

Rehearing Denied June 12, 1933.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Suit by John F. Carder against Fern Hazel Carder, in which plaintiff, his attorney, and another were cited for contempt of court. From a judgment against contemners, they appeal.

Cause stricken from the docket for want of jurisdiction.

Samuel Eppstein, of Kansas City, for contemners.

John D. Wendorff and David M. Proctor, both of Kansas City, amici curiæ.

BLAND, Judge.

This is an appeal from a judgment against the appellants in an indirect criminal contempt proceeding.

The facts show that appellant, R. A. Kope, is an attorney of Kansas City and that appellant, John F. Carder, and his wife, Fern Hazel Carder, are residents of Bates county; that on October 17th, 1931, John F. Carder, by his attorney, R. A. Kope, filed a petition for divorce in the circuit court of Jackson county, at Kansas City, against his wife; that the summons was duly issued and delivered to the sheriff of said county for service upon the defendant. A writ of summons in the cause was served by a deputy sheriff upon a woman in a hotel in Kansas City, who was not the defendant, but who represented herself to be such. Neither the name nor the identity of the woman to whom the summons and copy of the petition were delivered by the deputy sheriff is known, but she was not the defendant. At the time of the service defendant was not in Jackson county. Having learned from a friend who had seen in a Kansas City newspaper that she had been sued by her husband for divorce in Kansas City, Mrs. Carder caused her attorney to come to that place to investigate and he found that the suit had been filed. On December 2nd, 1931, Mrs. Carder, through her attorney, filed a motion to quash the sheriff's return and a plea in abatement and served notice on Kope that the motion and plea would be called up for hearing on December 7th, 1931. On the last mentioned day Kope undertook to dismiss the case by paying the circuit clerk the costs, instructing the clerk to dismiss it. On the same day the court heard the motion to quash and the plea in abatement and sustained both and ordered the suit dismissed at plaintiff's cost and, upon its own motion, appointed David M. Proctor and John D. Wendorff, members of the Kansas City Bar, amici curiæ, "to prepare and file citation to plaintiff (John F. Carder), his attorney R. A. Kope and Rachel Roe, purporting to be Fern Hazel Carder, for alleged contempt of court in procuring service in above entitled cause."

On December 15th, the court issued a citation in contempt against Carder, Kope and Roe. On December 19th, copies of the citation having been served upon Carder and Kope, they filed joint and separate pleas to discharge the rule and quash the citation, on the ground, among others, that there had been "no accusation, complaint or affidavit setting forth the facts that constitute contempt." On December 21st, the court, upon its own motion, set aside the order sustaining defendant's plea in abatement and dismissing the cause and reinstated the cause upon the docket. Whereupon, Fern Hazel Carder filed a complaint, charging that Carder, Kope and Roe entered into a conspiracy "for the purpose of resistance wilfully offered to the lawful process of this Court," by filing the divorce petition in the court and informing the sheriff and his deputies that the defendant could be found in a hotel in Kansas City, and substituting one "Rachel Roe" for the defendant in the case; that this woman's name was not known to the plaintiff; that they represented to the sheriff that the said Rachel Roe was the defendant and caused the sheriff to serve process of summons in said cause upon said Rachel Roe, and thereby obtained a false and fraudulent service upon the defendant and also procured a false and fraudulent return of summons by the sheriff, innocently made by him, all of which was done for the purpose of conferring jurisdiction upon the court.

Upon the filing of the complaint the court issued an amended citation directed to Carder, Kope and Roe, which citation follows, generally, the facts set forth in the complaint. It charges that the acts were "contemptuous of this court and the dignity thereof and designed to subject it to ridicule and to impair the respect due to its authority and attempt to interfere with and abuse the legal process of this court for the purpose of conferring upon it a fictitious appearance of jurisdiction over the subject matter of and parties to this suit and for fraudulently procuring from said court assignment and trial of said cause, together with orders, judgment and decrees in and pertaining thereto and thereby bringing this court and the judges thereof into disrespect and contempt and tending to destroy the respect of the people for the law of the land by breaking down the faith of the people in the courts thereof by which, if at all, the laws of the land must be administered," and ordered them to appear before the court on the day that the citation was issued.

It appears that Carder and Kope were in court at the time the amended citation was issued and service thereof was accepted by them. Thereupon, their motion to discharge the rule and quash the citation was by the court overruled. Whereupon, they filed separate answers to the citation. Thereafter evidence was heard and the court found Carder and Kope guilty of contempt and assessed against each a fine of $50.00 and imprisonment of ninety days in the county jail. The cost of the contempt proceedings were also assessed against them.

There is no appeal in this state in a purely criminal contempt proceeding. In re Clark, 208 Mo. 121, 146, 106 S. W. 990, 15 L. R. A. (N. S.) 389. As appeals are purely statutory, unless the statute allows an appeal in a case of this kind, there is none (State ex rel. v. Arnold, 317 Mo. 858, 297 S. W. 59; In re Tevis v. Foley, 325 Mo. 1050, 30 S.W.(2d) 68; Segall v. Garlichs, 313 Mo. 406, 281 S. W. 693), and we have no jurisdiction. Although respondent has not raised any question as to the jurisdiction of this court, it is our duty to raise the point of our own motion, as jurisdiction cannot be conferred upon this court by any act or omission on the part of any of the parties. Woodcock v. K. C. Stock Yds. Co. (Mo. App.) 48 S.W.(2d) 112; Bowman v. Phelps County (Mo. App.) 36 S.W.(2d) 414.

There are four kinds of contempt proceedings: Direct, indirect, civil and criminal.

"A direct contempt is an open insult committed in the presence of the court to the person of the presiding judge, or a resistance or defiance in his presence to its powers or authority, or improper conduct so near to the court as to interrupt its proceedings.

"A constructive contempt is an act done, not in the...