Coonley v. Coonley

• Decision Date: 30 January 1922
• Docket Number: No. 14260.,14260.
• Parties: COONLEY v. COONLEY.
• Court: Missouri Court of Appeals

237 S.W. 198

COONLEY v. COONLEY.

No. 14260.

Kansas City Court of Appeals. Missouri.

January 30, 1922.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

"Not to be officially published."

Action by George T. Coonley against Frances A. Coonley. From an order overruling a motion to vacate a judgment for divorce for plaintiff and to reinstate, defendant appeals. Reversed and remanded, with directions to set aside judgment and reinstate.

Charles M. Miller, of Kansas City, for appellant.

Kirkpatrick, McCullum & Kirkpatrick, of Kansas City, for respondent.

TRIABLE, P. J.

This is au appeal from an order overruling a motion to vacate a judgment for divorce and to reinstate cause upon the docket.

On July 23, 1920, George T. Coonley, the respondent herein, filed suit for divorce against Frances A. Coonley, returnable to the September term, 1920, of the circuit court of Jackson county, Mo., at Independence. The suit was filed in vacation. The petition alleged that the defendant Frances A. Coonley was a nonresident of the state of Missouri, and could not be served with process. Upon the filing of said petition in vacation, the clerk made the following entry:

"In Vacation, Friday, July 23, 1920.

"George T. Coonley, Plaintiff, v. Frances A. Coonley, Defendant. (No. 40258.)

"Now on this 23d day of July, A. D. 1920, comes the plaintiff by attorney and presents to the clerk of the circuit court of Jackson county, Missouri, at Independence, in vacation, verified petition filed herein which states among other things that said defendant is a nonresident of the state of Missouri, and the court wherein said suit is brought being fully advised in the premises, has, at Independence, Jackson county, Missouri. Thereupon the following order is made by said clerk, to wit:

"To Frances A. Coonley, Defendant:

"You are hereby notified that the plaintiff has commenced Suit against you by petition heretofore filed in said court the object and general nature of which is to obtain a decree of divorce from the bonds of matrimony heretofore contracted between plaintiff and defendant. On the grounds of, that defendant has offered to plaintiff such indignities as to render his condition as her husband intolerable. And unless you be and appear at the next regular term of said court to be begun and held at the county courthouse in the city of Independence, Jackson county, Missouri, on the 2d Monday in September next, the same being the 13th day of said month, and on or before the third day thereof answer unto said petition, it will be taken by you as confessed and a decree granted as prayed. It is further ordered that publication hereof be made according to law in the Jackson Examiner, a newspaper published regularly in said county."

Under the above order, there was published in said paper (a weekly) for four successive insertions, the first being July 30, and the last August 20, 1920, the following:

"Order of Publication.

"In the Circuit Court of Jackson County, Missouri, at Independence, September Term, 1920.

"George T. Coonley, Plaintiff, v. Frances A. Coonley, Defendant. No. 40258.

"Now, on this 23d day of July, A. D. 1920, comes plaintiff in the above entitled cause for divorce and presents his verified petition wherein he has alleged that the defendant is a nonresident of the state of Missouri, and the court wherein said suit is brought being fully advised in the premises, has, at Independence, Jackson County, Mo., made the following order, to wit:

"To Frances A. Coonley, Defendant:

"You are hereby notified that the plaintiff has commenced suit against you by petition heretofore filed in said court, the object and general nature of which is to obtain a decree of divorce from the bonds of matrimony heretofore contracted between plaintiff and defendant. On the grounds: That defendant has offered to plaintiff such indignities as to render his condition as her husband intolerable. And unless you be and appear at the regular September term, 1920, of said court, to be begun and held at the county courthouse, in the city of Independence, Jackson county, Missouri, on the second Monday in September next, the same being the 13th day of said month, and on or before the third day thereof answer unto said petition, it will be taken as by you confessed and a decree granted as prayed. It is further ordered that publication hereof be made according to law in the Jackson Examiner, a newspaper published regularly in said county.

                   "Attest:      W. H. Harper, Clerk
                      "By George Donnellan, Deputy Clerk."
                

On the 18th day of the September term, 1920, Friday October 8, 1920, the trial court in said case rendered the following judgment:

"George T. Coonley, Plaintiff, v. Frances A. Coonley, Defendant.

"Now on this day comes plaintiff in person and by attorney, and defendant, although duly and lawfully summoned by publication, proof of which is made and heretofore filed, comes not, but makes default.

"This cause now coming on regularly for trial, is submitted to the court upon the pleadings and after having heard the evidence, the court finds that the allegations in plaintiff's petition are true; that plaintiff is the innocent and injured party and entitled to the relief prayed.

"Wherefore it is adjudged and decreed by the court that the bonds of matrimony heretofore contracted between plaintiff and defendant be and the same is hereby dissolved and for naught held and plaintiff forever freed from the obligations thereof.

"It is further ordered and adjudged by the court that the costs herein be paid by, and that execution therefor issue against, the defendant."

At the March term, 1921, March 26, 1921, defendant filed a motion "to vacate the purported judgment and decree of divorce granted plaintiff * * * and to reinstate this cause upon the docket for the reason that at the time of making said entry of record no service of process had been had upon and no entry of appearance made by the defendant; that the attempted and pretended service by publication was not made in accordance with the statutes of the state of Missouri as shown by the record entries in the cause and the proof of publication, and is wholly void and of no effect." Two days later the court overruled said motion and, as stated at the outset of this opinion, the defendant has appealed. We have not been favored with a brief by respondent, and are therefore without knowledge of the theory on which the trial court overruled the motion:

[1, 2] Said motion to vacate the judgment and reinstate case on the docket was filed in time even if decree of divorce was rendered at the September term, 1920, and the motion was not filed until the March term, 1921, with the November term, 1020, intervening. Section 1552, R. S. 1919; Hirsh v. Weisberger, 44 Mo. App. 506; State ex rel. Ozark County v. Tate, 109 Mo. 265, 18 S. W. 1088, 32 Am. St. Rep. 664. And if the irregularity is such as to invalidate the service relied upon, then it is such irregularity for which the motion will lie. Woodruff v. Bunker-Culler Lumber Co., 242 Mo. 381, 146 S. W. 1162.

[3] It will be observed that the order, spread upon the records by the clerk in vacation, in addition to saying that a verified petition had been filed, which stated, among other things, that "said defendant is a nonresident of the state of Missouri;" also contains the following incomplete and unnecessary statement: "And the court wherein said suit is brought being fully advised in the premises, has, at Independence, Jackson county, Missouri." Then follows the statement that "thereupon the clerk made the following order," which is then set out in full.

It will be further seen that the notice of publication of the order, after stating the filing of the verified petition on the 23d day of July, 1920, wherein it is alleged that de...