Childs v. Childs

• Decision Date: 31 January 1882
• Parties: EMMA CHILDS, Appellant, v. GEORGE W. CHILDS, Respondent.
• Court: Missouri Court of Appeals

11 Mo.App. 395

EMMA CHILDS, Appellant,

v.GEORGE W. CHILDS, Respondent.

St. Louis Court of Appeals, Missouri.

Jan. 31, 1882.

A decree of divorce cannot be reviewed on petition after the lapse of the term at which the decree was rendered, where the proceedings were regular and the court had jurisdiction of the parties.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Affirmed.

M. THOMPSON, for the appellant.

W. H. H. RUSSELL, for the respondent.

THOMPSON, J., delivered the opinion of the court.

The plaintiff brings this suit to set aside a decree made by the court in which this petition was filed, divorcing the defendant from her, and to procure a divorce from him, with alimony. A demurrer to the petition was sustained, and, the plaintiff declining further to plead, judgment was given for the defendant, and the plaintiff has appealed. The substantial averments of the petition and the grounds on which the circuit court sustained the demurrer thereto, are stated in the subjoined opinion by Thayer, J.

“On February 17, 1879, the defendant in this action filed a bill for divorce against his then wife, Emeline Childs, alleging in substance that she had abandoned him without reasonable cause, for the space of more than one year. Service was obtained on the wife by publication, on the usual affidavit that she was a non-resident, and a decree of divorce was rendered in favor of the husband, June 18, 1879. The wife did not appear to defend the action for divorce at any stage of the proceedings; but, on May 4, 1881, she appeared and instituted the present action, for the purpose of having the former decree of divorce set aside, and a decree awarded in her own favor, together with alimony and other relief. The plaintiff's petition has been demurred to, and the right of the wife to relief, under the facts stated in the petition, is thus called in question. The petition filed by the wife is very lengthy, but it will suffice for the purpose of this decision to state the general character of the averments.

She alleges that she was married to the defendant in Baltimore, Maryland, in the year 1862, and that she continued to live with him until the year 1869, when he abandoned her and her child at Norfolk, Virginia. She alleges that she always conducted herself as a dutiful wife, but that, notwithstanding her own good conduct, the defendant drove her from his home and refused to live with her, on several occasions before his final act of abandonment. She furthermore states that she never had any knowledge of the divorce proceedings, until the month of February, 1881; that she was ignorant of his whereabouts from 1870, after he abandoned her in Norfolk, Virginia, until the year 1875, when she casually heard of him in St. Louis, Missouri; that since 1875, she has written to him at St. Louis, Missouri, several times and received no reply. The plaintiff also charges that the averment made and sworn to by the defendant in his original bill for divorce, to the effect that he had been abandoned by his wife, was a wilful falsehood; the fact being that he had knowingly and intentionally, without any cause or provocation, abandoned her.

From the facts alleged by the plaintiff, this would appear to be a case where a court of equity ought to interfere and set aside the original decree of divorce, on the ground that the same was procured by fraud; but our statute respecting divorce has apparently barred the door to such relief. Section 2184 of the Revised Statutes of 1879, limits the right of appeal from a decree of divorce to the term at which the decree was rendered, and the right to sue out a writ of error to sixty days after the entry of the decree. Section 2185 (as if to close the way to all redress in matters of divorce, where an appeal is not taken or a writ of error is not sued out in time) provides, that “‘ no petition for review of any judgment for divorce rendered in any case arising under this chapter shall be allowed, any law or statute to the contrary notwithstanding.'

This proceeding is clearly a ‘ petition for review’ of the judgment or decree of divorce entered in room No. 1 of this court, on June 18, 1879. Story's Eq. Pl. (10th ed.), sect. 426. This statute went into force in May, 1856, and has been incorporated into each subsequent revision. It is true that the policy of the statute has been criticised by the supreme court in the case of Mansfield v. Mansfield (26 Mo. 163, also in the case of Cole v. Cole (3 Mo. Mo. App. 571); but its applicability to a case like the present has never been authoritatively denied, and indeed it cannot be denied, unless the courts hold that the legislature did not intend to deny the right to file a petition for review of judgments for divorce, where the same had been obtained by fraud. Such...