Cox v. Cox

• Citation: 115 S.W.2d 104
• Decision Date: 25 March 1938
• Docket Number: No. 5926.,5926.
• Parties: COX v. COX.
• Court: Court of Appeal of Missouri (US)

115 S.W.2d 104

COX v. COX.

No. 5926.

Springfield Court of Appeals. Missouri.

March 25, 1938.

Appeal from Circuit Court, Phelps County; W. E. Barton, Judge.

"Not to be published in State Reports."

Action for divorce by Alva Cox against Vida Cox, wherein a default decree was granted to the plaintiff. From a judgment sustaining the defendant's motion to set aside the judgment and decree of divorce on ground that the court had no jurisdiction, the plaintiff appeals.

Affirmed.

J. Ellis Walker, Ivan L. Rinehart, and Llyn Bradford, all of Rolla, for appellant.

S. D. Frampton and Leo F. Laughren, both of St. Louis, for respondent.

FULBRIGHT, Judge.

This case was filed in the circuit court of Phelps county, July 6, 1936. On the same day the clerk of said court, in vacation, issued an order of publication, the object of which was to secure service upon the defendant by notifying her that plaintiff had commenced an action against her, the general nature of which was to secure a divorce. No answer or other pleading was filed by defendant. At the regular September term, 1936, of said court, defendant made default and a decree of divorce was granted plaintiff. On March 2, 1937, and after the expiration of the September term, 1936, of said court, defendant filed her motion to set aside the judgment and decree of divorce granted plaintiff, and at the regular April term, 1937, of said court, the cause was continued by agreement to the next regular term in September; at which time, the court made an order sustaining the motion to set aside the decree of divorce "because the court had no jurisdiction to render the same." Whereupon plaintiff filed a motion for a rehearing on the motion which was by the court overruled and the cause was duly appealed to this court.

Plaintiff relies solely upon the record proper to sustain his only assignment of error. "The trial court erred in sustaining defendant's motion to set aside the final decree of divorce herein, for the reason that said motion was filed after the expiration of the term of court at which said final decree of divorce was rendered."

It is well-settled law in this state that when service is had by publication there must be a strict compliance with the statute. Williams v. Sands, 251 Mo. 147, 158 S.W. 47; Flynn v. Tate, 286 Mo. 454, 228 S.W. 1070. As a basis for securing an order of publication it is alleged in the petition "that the defendant has absented herself from the State of Missouri or has changed her abode or secreted herself, so that the ordinary process of law cannot be served upon her." The order of publication recites "that defendant is not a resident of the State of Missouri, so that the ordinary process of law cannot be served upon her within this state." It...