Culp v. Culp

• Decision Date: 06 December 1948
• Docket Number: 21057
• Citation: Culp v. Culp, 216 S.W.2d 551 (Kan. App. 1948)
• Parties: CULP v. CULP
• Court: Kansas Court of Appeals

216 S.W.2d 551

CULP v. CULP

No. 21057

Court of Appeals of Missouri, Kansas City

December 6, 1948

C. R Leslie, of Independence, for appellant.

J Marcus Kirtley and John S. Newhouse, both of Independence for respondent.

OPINION

BLAND

This is a suit for divorce.The court granted defendant a divorce upon his cross bill.In due time plaintiff filed a motion to set aside the decree, praying that the case be restored to the trial docket and tried on the merits.Subsequent to the date of the trial, and before the filing of this motion, plaintiff's attorney died and she obtained the services of another attorney who filed the motion.The motion recites that plaintiff was not notified of the date of the hearing of the divorce case; that she had no opportunity to be present, and that the dismissal of her petition was without her knowledge and consent; that as a result of consultations with her attorney she was under the impression that a divorce decree could not be granted unless the parties to the suit were in agreement and that a contest of the cause could not be made; that she was unaware of her legal rights and had no opportunity to present her case on the merits; that her property rights have been greatly affected.

The court sustained the motion, set aside the decree of divorce and ordered the cause reinstated upon the trial docket.Defendant has appealed.

Defendant, in his answer and cross bill in the divorce suit, set forth in detail numerous acts of misconduct on the part of the plaintiff therein with another man, on account of which he prayed to be divorced from the bonds of matrimony with plaintiff.No reply was filed on behalf of plaintiff.The record recites that the case came on regularly for trial on the 7th day of November 1947, at which time plaintiff appeared by her attorney and defendant appeared in person and by his attorney.The record discloses that defendant testified in support of the charges made in his cross bill and that plaintiff's counsel admitted his good reputation.There was no evidence offered on behalf of plaintiff but the attention of the court was called to the fact that she had requested, in her petition, the restoration of her former name.At the close of the evidence the court made the following orders: 'Decree of divorce to defendant on cross bill; restoration of former name of Higgs to plaintiff; plaintiff's petition dismissed.It is further ordered and adjudged by the court that the plaintiff be and she is hereby restored to her former name of Maxine Higgs.

'It is further ordered and adjudged by the court that the costs herein be paid by and that execution issue therefor against the plaintiff.'

The motion to set aside the decree of divorce was filed on November 17, 1947.Plaintiff testified in support of her motion that her attorney told her that a 'divorce decree could be granted only in the event the parties to the suit were in agreement and a contest of the case could not be made', and he advised her that 'they just wouldn't let me have the divorce'; that she asked her attorney if it made any difference who got the divorce and he answered in the negative 'and so I said rather than have it dragged on and on I would just as soon they would get the divorce if it wouldn't make any difference with the rest of the case, and he said it didn't.* * * It was my understanding that a divorce would not have any effect on the real estate at all.That was two different cases'; that her attorney told her it was not necessary for her to be present when the case came up but that he would notify her.She further testified that he failed to do this, and that she would have been present had she known when it was set for trial.

The record discloses that she knew what was in the cross bill which, in substance, charged her with adultery.However, she was under the impression that these charges would be dismissed and that defendant would obtain a divorce on less serious grounds.Her attorney told her the day after the divorce was granted that her petition was dismissed and that the divorce was granted on the grounds of incompatibility.

There is a controversy between the parties as to the nature of plaintiff's motion and the effect of the court's order upon the same.Defendant contends that plaintiff's motion was a motion for a new trial and that the court granted a new trial.Plaintiff contends that there never was a trial and therefore there could not have been a new trial granted; that the judgment was one by default, from which an appeal does not lie.

The record discloses that the judgment was not one by default but that there was a trial of the case on its merits, the attorneys for both sides being present and participating therein.The fact that no reply was filed to the cross bill does not render the judgment one by default.It is quite apparent that the case was tried on the theory that a reply was filed.Roden v. Helm,192 Mo. 71.

The defendant insists that the court erred in granting a new trial.We think that this contention must be sustained.No effort has been made at any time by the plaintiff to point out in what way the decree of divorce granted the defendant conferred upon him any greater rights in her property than he had before the decree was rendered.The decree does not purport to dispose of property interests.So the complaint of the plaintiff may be narrowed down to the statement that while she was willing for her husband to obtain a decree of divorce she was not willing that he obtain it on the grounds on which he secured it.In other words she does not complain of the result but the process by which the result was brought about.No authority is cited by plaintiff to uphold the granting of a new trial in view of such a situation.

However, a more serious matter presents itself as to why plaintiff's motion was improperly sustained.Plaintiff testified that her attorney told her that the divorce would not be granted except by the consent of the parties; that it would not be necessary for her to be present when the case was tried but that she would be notified; that she expected to be notified, and had she known the case was coming up she would have been present.It is to be inferred that she would have contested the cross bill so long as the divorce was sought by the defendant on the grounds set forth therein which amounts, substantially, to a charge of adultery.

The fact that she was not notified was due to oversight or negligence on the part of her attorney.While an excusable mistake (see§ 1168, R.S.Mo.1939, Mo.R.S.A.) is grounds for granting a new trial in civil cases neither ignorance, blunders, negligence, nor misapprehension of counsel, not occasioned by the adverse party is ground for vacating a judgment.'In civil cases the rule is practically universal that a new trial will not be granted on the ground of the negligence or incompetence of the attorney for the party applying for such new trial.The law regards the neglect of an attorney as the client's own neglect and will give no relief from the consequence thereof.One is not, in the absence of fraud or collusion, entitled to a new trial for the neglect of his counsel in failing to notify him of steps taken in the cause.'39 Am.Juris.p. 159.See also, State v. Dreher,137 Mo. 11, 38 S.W. 567;State v. Selvaggi,319 Mo. 40, 2 S.W.2d 765;State v. Mason,339 Mo. 874, 878, 98 S.W.2d 574;State v. McGee,336 Mo. 1082, loc. cit. 1104, 83 S.W.2d 98.'Nor will a new trial be ordered because of surprise which is based on ignorance of law.'39 Am.Juris.P. 158.

'The absence from the trial of the unsuccessful party, and the consequent loss of his testimony or assistance, is not grounds for a new trial, unless his failure to attend was attributable to accident or adventitious circumstances and not to the negligence of himself or his attorney, where, for example, his absence was wholly voluntary.That his attorney or agent not being misled by the court or adversary party, failed to notify him of the time of trial, or failed to notify him correctly or in proper time or manner, or notified him that the case had been continued, furnished no legal ground for his nonattendance.'46 C.J.pp. 220, 221.See, also, Patchin v. Wegman,19 Mo. 151.The rule laid down in the above authorities applies in divorce cases as well as others.19 C.J. page 186, 27 C.J.S., Divorce, § 158, p. 781.

'* * * mere negligence of counsel in defending a divorce suit or an error of judgment or a misunderstanding of the client's wishes in consenting to dismiss an appeal does not announce such fraud upon the client as will sustain a suit to set aside the judgment of divorce.'17 Am.Juris.p. 386.

In the case of Parker v. Britton,133 Mo.App. 270, 274 276, 113 S.W. 259, 260, the court said: 'Trial judges have a very wide discretion to grant new trials in order to accomplish justice, and their orders will not be reversed, unless an abuse of discretion plainly appears.Longdon v. Kelly,51 Mo.App. 572;Ensor v. Smith,57 Mo.App. [584], 588;Whitsett v. Ransom,79 Mo. 258.In view of the strong colors in which this discretion has been depicted by courts of review, our first thought was that the ruling of the court below in the present case must be approved, especially as it allowed a new trial; for appellate tribunals are less disposed to reverse orders granting new trials, and thereby leaving the controversy to be examined again judicially, than orders of refusal which foreclose redress if wrong has been done.The defect of proof in this cause must be charged against respondents themselves or their attorneys, and in either event the result is the same, because the neglect of their attorneys is, in law, their own.Biebinger v. Taylor,64 Mo. 63, 66. ...