Cook v. Cook

• Decision Date: 19 February 1934
• Citation: Cook v. Cook, 68 S.W.2d 900, 228 Mo. App. 478 (Kan. App. 1934)
• Parties: LOTUS COOK, BY, ETC., RESPONDENT, v. DENT COOK, APPELLANT
• Court: Kansas Court of Appeals

68 S.W.2d 900

228 Mo.App. 478

LOTUS COOK, BY, ETC., RESPONDENT, v. DENT COOK, APPELLANT

Court of Appeals of Missouri, Kansas City

February 19, 1934

Appeal from Circuit Court of Randolph County.--Hon. Willard P. Cave Special Judge.

Reversed and remanded.

Hammett & Holman for respondent.

Wm. M Stringer and Jerry M. Jeffries for appellant.

OPINION

SHAIN P. J.

This cause was instituted for Lotus Cook by August Linneman, her next friend, filing a petition for divorce in the Circuit Court of Randolph County against her husband, Dent Cook.

It appears that at the time of the institution of the suit the defendant was a resident of the State of Texas, however, Dent Cook the defendant entered appearance and joined issue by answer and cross-bill.

The cause was triable at the June term, 1932, of the Circuit Court of Randolph County.

The record shows that Hon. A. W. Walker, the regular Circuit Judge, was unable to hold said term of court and the clerk, under the provisions of Sections 1943-45-46 and 47 of Revised Statutes 1929, called an election and the Hon. Willard P. Cave, a member of the Randolph bar, was duly elected and thereafter duly qualified as special circuit judge for the June term, 1932, of said court.The election aforesaid was held on June 8, 1932, and the record discloses that said June term continued up to and including August 13, 1932.

On June 10, 1932, this cause was taken up and heard before the said Special judge and on June 11, 1932, a judgment was rendered in said cause dismissing the plaintiff's petition and also dismissing the defendant's cross-bill.No objections or exceptions were made or taken to the action of the court and no steps looking to an appeal were taken.

On August 12, 1932, during the June term, the plaintiff filed a motion to set aside the judgment had and entered on June 11, 1932.Although this motion was filed over sixty days after the rendition of the judgment, the record does not disclose any notice to the defendant.One W. M. Stringer had appeared as attorney for defendant in the trial of the case and it is shown that he appeared in court and filed a motion to the effect that he was not at that time representing the defendant.On August 13, 1932, during the aforesaid June term, the special judge took up plaintiff's motion and sustained same and reinstated the said cause.It is shown that on that date, W. M. Stringer was permitted by the court to withdraw from the case.

No objections or exceptions are shown as made or taken to the action of the court in setting aside the judgment and restoring said case to the docket and no steps appear to have been taken looking to an appeal from this action of the court.

The regular October term, 1932, of the Circuit Court of Randolph County, Missouri, opened on October 10, 1932, and it is shown by the record in this case that the Hon. A. W. Walker, regular circuit judge was present and presiding.

During the said October court the record shows, that three separate and several motions were filed in the court wherein it was asked that this cause be stricken from the docket.It is further shown that during the said October term of court an amended petition was filed by the plaintiff in this cause and that a trial of the cause had and judgment for divorce, for custody of children and for alimony, was had and entered in plaintiff's favor.It is further shown that motions for new trial and arrest were filed during said October term.While the record shows the regular judge as present and presiding, still it is shown that in all matters Hon. Willard P. Cave, designated as special judge, was presiding, that he made all rulings denying motions to strike, and that the trial and all proceedings and judgment was by the said designated special judge.

The motions for new trial and in arrest were not passed upon at the said October term.

The record discloses that at the February...