DeFord v. Johnson

• Decision Date: 17 June 1913
• Citation: 158 S.W. 29,251 Mo. 244
• Parties: PETER DeFORD, Appellant, v. ISAIAH JOHNSON
• Court: Missouri Supreme Court

158 S.W. 29

251 Mo. 244

PETER DeFORD, Appellant, v. ISAIAH JOHNSON

Supreme Court of Missouri, First Division

June 17, 1913

Appeal from Jackson Circuit Court. -- Hon. Thomas J. Seehorn, Judge.

Reversed and remanded.

Bird & Pope for appellant.

(1) A husband's right of action for alienation of affections is personal, and is not barred by a judgment of divorce. Bennett v. Bennett, 116 N.Y. 584, 6 L.R.A. 553; Nolin v. Pearson, 191 Mass. 283; Wales v Miner, 89 Ind. 118; Michael v. Dunkle, 84 Ind 544; Wood v. Matthews, 47 Iowa 409; Purdy v Robinson, 133 A.D. 155, 117 N.Y.S. 295; Prettyman v. Williamson, 1 Pa. St. 224; Beach v. Brown, 20 Wash. 266, 43 L.R.A. 114. (2) Sec. 2378, R.S. 1909, does not forfeit rights against third persons accruing during the existence of the marriage relation. Kilburn v. Kilburn, 89 Cal. 46; Kinzey v. Kinzey, 115 Mo. 496; Saunders v. Saunders, 144 Mo. 482; Schuster v. Schuster, 93 Mo. 438; Bufe v. Bufe, 88 Mo.App. 627; Wales v. Miner, 89 Ind. 118; State v. Parrish, 1 Ind.App. 441; Buttlar v. Buttlar, 67 N.J.Eq. 136; 2 Bishop Mar. & Div., sec. 1623; Moss v. Fitch, 212 Mo. 484; Ross v. Ross, 21 Ore. 9; Barrett v. Failing, 3 F. 471. (3) No proof was made as to the effect of a divorce rendered in Idaho. The Missouri statute being penal there is no presumption that there is a similar statute in Idaho. St. Sure v. Lindspelt, 82 Wis. 346. (4) If proof had been made of a penal statute of Idaho such statute could not be made to act extraterritorially. Stanley v. Railroad, 100 Mo 435, 8 L.R.A. 549; Clark v. Clark, 8 Cush. 385; Succession of Herhandez, 46 La. 962; 2 Bishop Mar. & Div., sec. 1618; State v. Fenn, 47 Wash. 561, 17 L.R.A. (N.S.) 803; Smith v. Ross, 7 Mo. 232; Fall v. Eastin, 215 U.S. 1; Proctor v. Proctor, 215 Ill. 275; Hood v. Hood, 130 Ga. 610, 19 L.R.A. (N.S.) 193; Doerr v. Forsythe, 50 O. St. 726; Kline v. Kline, 57 Iowa 386. (5) A judgment in one State enforcing a penal statute of that State cannot be made to carry the enforcement of that penalty to another State. State v. Ebbs, 150 N.C. 44; McGrew v. Ins. Co., 132 Cal. 85; Wisconsin v. Ins. Co., 127 U.S. 265; Phillips v. Madrid, 83 Me. 205; Van Storch v. Griffin, 71 Pa. 244; Garner v. Garner, 56 Md. 127; Ponsford v. Johnson, 2 Blatch. 51; Thorp v. Thorp, 90 N.Y. 602; Bullock v. Bullock, 122 Mass. 3; 14 Cyc. 729; 2 Bishop Mar. & Div., sec. 1620. (6) A judgment rendered on service by publication cannot affect property rights of the defendant in another State. Moss v. Fitch, 212 Mo. 484; Anthony v. Rice, 110 Mo. 223; Hamill v. Talbott, 72 Mo.App. 22; Hamill v. Talbott, 81 Mo.App. 214; Anderson v. Anderson, 55 Mo.App. 272; Pennoyer v. Neff, 95 U.S. 727; Hood v. Hood, 130 Ga. 610; Proctor v. Proctor, 215 Ill. 275; McGuinness v. McGuinness, 71 N.J.Eq. 1; Doerr v. Forsythe, 50 O. St. 726; Kline v. Kline, 57 Iowa 386; 14 Cyc. 589; Ellison v. Martin, 53 Mo. 575; Note to 9 L.R.A. (N.S.) 593. (7) The Idaho decree does not purport to affect any of defendant's property rights. It only affected his matrimonial status. January v. Speeder, 38 Mo. 395; Hekking v. Pfaff, 82 F. 403, 91 F. 60; Rigney v. Rigney, 127 N.Y. 408. (8) If the Idaho decree had purported to affect any of defendant's rights, the courts of Missouri would not be bound to enforce that judgment. Smith v. Ross, 7 Mo. 232; Pennoyer v. Neff, 95 U.S. 729; Haddock v. Haddock, 201 U.S. 562; Fall v. Eastin, 215 U.S. 1; Reed v. Reed, 52 Mich. 117; Smith v. Ross, 7 Mo. 232.

Ben T. Hardin for respondent.

(1) The trial court was right in sustaining defendant's demurrer to plaintiff's evidence. In all cases of divorce from the bonds of matrimony, the guilty party shall forfeit all rights and claims under and by virtue of the marriage. R.S. 1909, sec. 2378; Gould v. Crow, 57 Mo. 200; Anthony v. Rice, 110 Mo. 223; Lieber v. Lieber, 239 Mo. 1; Hamilton v. McNeill, 150 Iowa 470; Story v. Story, 188 Mo. 127. (2) The effect of our statute, section 2378, is not limited merely to the relations of the parties between themselves. It bears upon their future relations, each to the other, and each to the world. And the decree of divorce rendered in Idaho, is just as binding on the appellant here, and in every State in the Union, as it is in Idaho. Gould v. Crow, 57 Mo. 200; Anthony v. Rice, 110 Mo. 223; Lieber v. Lieber, 239 Mo. 1; Hamilton v. McNeill, 150 Iowa 470; Steamboat Co. v. Foster, 48 Am. Dec. 273; Arndt v. Griggs, 134 U.S. 316; Wehrman v. Conklin, 155 U.S. 314; Arrington v. Arrington, 127 N.C. 190; In re James, 99 Cal. 374; Estate of Newman, 75 Cal. 213; Succession of Benton, 59 L.R.A. 135; Van Blarcum v. Larson, 130 N.Y.S. 925. (3) In the absence of the laws of Idaho, they are presumed to be the same as our own. That State never having been subject to the laws of England, but the territory out of which it was carved having been acquired from Spain, in the absence of its laws, our own must be applied. Biggie v. Railroad, 159 Mo.App. 350; McManus v. Railroad, 118 Mo.App. 152; Bain v. Arnold, 33 Mo.App. 631.

OPINION

GRAVES, J.

December 28, 1906, the plaintiff sued the defendant in the circuit court of Jackson county for an alleged alienation of his wife's affections. Plaintiff recovered judgment for $ 5500, and upon defendant's appeal to the Kansas City Court of Appeals the judgment was reversed for error in an instruction. [DeFord v. Johnson, 152 Mo.App. 209.] In the opinion of the Kansas City Court of Appeals it is stated that the answer was a general denial. The record before us shows that on October 1, 1908, the plaintiff filed an amended petition, asking for damages in the aggregate sum of $ 25,000. Of these alleged damages $ 15,000 is denominated actual, and $ 10,000 punitive. The Court of Appeals passed upon the case in January, 1911, and October 6, 1911, the defendant amended its answer in advance of the retrial nisi. The answer in this record has two strings to its bow. First we have a general denial. For a further defense the new answer thus speaks:

"And for further answer to plaintiff's petition, this defendant says that during that time that Mary DeFord was the wife of the plaintiff, he was guilty of such cruel neglect and barbarous treatment of his said wife, as to cause her to institute suit against him for divorce, and on the 26th day of May, 1909, Mary DeFord, the wife of the plaintiff, at their home in the city of Grangeville, in Idaho county, in the State of Idaho, instituted such suit in the district court of said county and State, against the plaintiff, Peter DeFord, for divorce, and afterwards, to-wit, on the 3rd day of September, 1909, in said court, a decree of divorce was adjudged in favor of the said Mary DeFord and against the said Peter DeFord, the plaintiff herein, and he was adjudged the guilty party, and that by reason of said judgment and decree in said suit for divorce, the plaintiff has thereby forfeited all rights and claims under and by virtue of his marriage with the said Mary DeFord, and plaintiff is thereby barred from any claim or right of recovery in this action. Wherefore, having fully answered, this defendant asks to be discharged with its proper costs."

Reply to this new answer was a general denial.

The bill of exceptions filed is in abbreviated form and was evidently so framed as to present a single issue. The bill of exceptions contains this recitation:

"And said plaintiff introduced evidence tending to prove all the allegations of his petition filed in the above entitled cause. And said defendant, as a part of the cross-examination of the plaintiff himself, offered in evidence a certified copy of original complaint, summons, alias summons and judgment in the case of Mary E. DeFord, plaintiff, v. Peter DeFord, defendant, in the district court of Idaho county, State of Idaho.

"To the introduction of which complaint, summons, alias summons and judgment in evidence, plaintiff objected as incompetent, irrelevant and immaterial, and of no extra-territorial effect, and no defense to the prosecution of this action, and of no binding force upon him in this action in the State of Missouri.

"The Court: Objection overruled.

"To which action, order and ruling of the court counsel for plaintiff then and there duly excepted."

The bill of exceptions then contains a full transcript of all the proceedings in the Idaho court in this divorce proceeding, from the petition to the judgment. The petition in the divorce suit was filed May 26, 1909. Proof of service of summons in the divorce cases thus reads:

STATE OF KANSAS, COUNTY OF WYANDOTTE.

James R. Pollard, being duly sworn says:

That he is a citizen of the United States over the age of twenty-one years and a resident of Kansas City, State of Missouri, and not a party to nor in anywise interested in the action mentioned in the annexed alias summons;

That he personally served the within alias summons on the defendant named in said alias summons, Peter DeFord, by delivering to and leaving with said Peter DeFord, said defendant, personally at Kansas City, State of Kansas, on the 14th day of June, 1909, a copy of said alias summons together with a copy of the complaint in the action named in the said alias summons attached to said copy of alias summons.

James R. Pollard.

Subscribed and sworn to before me this 15th day of June, 1909.

O. Q. Claflin,

Notary Public of the County of Wyandotte, State of Kansas.

(O. Q. Claflin, Notary Public, Wyandotte Co., Kansas.)

The grounds for divorce as stated in the petition are:

"That the said defendant for more than two years last past wilfully neglected to provide plaintiff with the common necessities of life, because of his idleness, profligacy and dissipation.

"That on or about November, 1906, the defendant disregarding the solemnity of his marriage vows, wilfully and...