DeGraw v. DeGraw

• Decision Date: 22 April 1879
• Parties: MARIA DEGRAW, Plaintiff in Error, v. HAMILTON DEGRAW, Defendant in Error.
• Court: Missouri Court of Appeals

7 Mo.App. 121

MARIA DEGRAW, Plaintiff in Error,

v.HAMILTON DEGRAW, Defendant in Error.

St. Louis Court of Appeals, Missouri.

Apr. 22, 1879.

1. A petition to which a demurrer, if interposed, would be sustained on the ground that no cause of action is sufficiently stated, may yet confer jurisdiction.

2. In an action for divorce, if the court has jurisdiction of the subject-matter and the parties, its judgment, if erroneous, is not void, and is binding until reversed.

3. For fraud in obtaining jurisdiction, relief can be obtained only in the court

possessed of the original record, and by proceedings instituted for that purpose.

4. A judgment for divorce granted the husband is a bar to an action for divorce by the wife.

5. Alimony can not be granted except as an incident to divorce.

ERROR to St. Louis Circuit Court.

Affirmed.

JEFF. CHANDLER, for plaintiff in error: The decree upon which the defendant rests his case is void.--2 Whart. on Ev., sect. 796; Bowden v. Fitch, 15 Johns. 121; Bowers v. Bowers, 19 Mo. 351; 58 Mo. 141; 47 Miss. 170; 39 Cal. 646; 42 Miss. 506; 41 Miss. 89; Cole v. Cole, 3 Mo. App. 571. Upon jurisdictional questions the record may be contradicted.-- Egler v. Stone, 59 Mo. 89. The record must show that the court inquired into the matter.-- Wetzel v. Waters, 18 Mo. 396; Robinson v. Lawson, 26 Mo. 69. A judgment by confession against a married woman is void.-- Higgins v. Peltzer, 49 Mo. 152; Moses v. Goppen, 3 Gray, 411; Watkins v. Abrahams, 24 N. Y. 72. The principle that a party cannot impeach a judgment in a collateral proceeding does not apply here.--49 Mo. 157; 18 N. J. 87. A judgment obtained by fraud cannot be pleaded in bar.--15 Johns. 144; Ward v. Gunbeson, 57 Mo. 425; Spaulding v. Conway, 51 Mo. 51. This action can be maintained as the foundation for alimony.--58 Me. 513; Doyle v. Doyle, 26 Mo- 549.

H. LANDER, for defendant in error: The question is only one of jurisdiction. If the Linn court had jurisdiction of the subject-matter, of the parties, and of the cause, then the Linn decree cannot be void, and therefore, cannot be questioned collaterally.--2 Bishop's Mar. & Div., sect. 753 e; Nichols v. Nichols, 25 N. J. Eq. 60; Gilman v. Hovey, 26 Mo. 280; Wright v. Marsh, 2 Greene (Iowa), 111. The original petition filed in the Linn court, when filed, and when defendant therein was brought into court, was clearly good, and sufficient to give that court jurisdiction of the whole matter. It was then a statement that would have stood the test of a demurrer even. The jurisdiction having attached, whatever was afterwards done in the progress of the cause was the exercise of judicial power, and at most could be but error. None but an appellate power can look behind the decree.-- Morrow v. Weed, 4 Iowa, 89, and the authorities above cited. The court had the right to pass upon every question which occurred in the Linn cause; and that decree, until reversed, is binding upon every other court.-- Thompson v. Tolmie, 2 Pet. 157, 168, 169; Voorhees v. Bank, 10 Pet. 473; Grignon's Lessee v. Astor, 2 How. 319. Proceedings that are amendable are not void.-- Durham v. Heaton, 28 Ill. 264; Parmelee v. Hitchcock, 12 Wend. 96; Hardin v. Lee, 51 Mo. 241; Cooper v. Reynolds, 10 Wall. 308; Stewart v. Severance, 43 Mo. 331. If defective, it was simply a defective statement of what, if properly stated, would make a case.-- Fithian v. Monks, 43 Mo. 515; Morrow v. Weed, 4 Iowa, 77, 89. A divorce decree obtained by fraud can only be impeached by a direct proceeding in the original cause, and in the same court.--2 Bishop's Mar. & Div. (5th ed.), sects. 753 c, 753 d, 753 e, 753 b; Herman on Estop., sects. 146, 197, 198; Kimball v. Newport, 47 Vt. 42; Amory v. Amory, 12 Am. L. Reg. (N. S.) 38, 45, 46. A divorce obtained by fraud can not be set aside on an original bill for divorce.-- Greene v. Greene, 2 Gray, 361; Parish v. Parish, 9 Ohio St. 534; Allen v. Maclellan, 12 Pa. St. 328; Lucas v. Lucas, 3 Gray, 136. A divorce acquiesced in for several years, and one of the parties marries, will not be disturbed.-- Singer v. Singer, 41 Barb. 139; Succession v. Weigel, 18 La. An. 49; Bolton v. Brewster, 32 Barb. 389; Bourne v. Simpson, 9 B. Mon. 454; Gaines v. Gaines, 9 B. Mon. 295. Since the Practice Act of 1849, it is unnecessary to set out the findings on which the decree is based.-- Jones v. Booye, 47 Mo. 547; Ewing v. Brady, 48 Mo. 560; Kurlbaum v. Roepke, 27 Mo. 161; Martin v. Martin, 27 Mo. 227, 228; Schmidt v. Schmidt, 26 Mo. 235. And even under the old practice, such omission was but error.-- Finney v. The State, 9 Mo. 627, 628. Alimony can only be decreed as an incident to a judgment of divorce.-- Doyle v. Doyle, 26 Mo. 545; 2 Bishop's Mar. & Div. (5th ed.), sect. 356.

BAKEWELL, J., delivered the opinion of the court.

This is an action for divorce. The petition was filed on November 16, 1877, and states that the parties were married in 1840. Amongst other things, it is alleged that the defendant is worth $200,000. There is a prayer for alimony. The answer admits the marriage, and denies all other allegations. It also sets up as matter of defence a former divorce. The original petition and decree are set out in full. The petition was filed on April 2, 1866, by the defendant in the present action, in the Circuit Court of Linn County, Missouri. It alleges various sufficient grounds of divorce, and appears to comply with the statute. The decree is dated August 6, 1867. It recites that the parties appeared on that day, Maria DeGraw appearing by attorney, withdrawing her answer and cross-bill, and saying nothing. The decree proceeds: “And this cause coming on for final hearing and judgment, it appearing to the satisfaction of the court that the defendant had been duly served with process in all respects according to law, having been personally served with a copy of the original writ and petition by the sheriff of Linn County, Missouri, and the court being fully advised of the whole matter, it is therefore considered that the plaintiff herein is a much injured person; that the bonds of matrimony between the plaintiff and defendant ought to be forever dissolved.

“Wherefore it is ordered, adjudged, and decreed by the court, that the bonds of matrimony existing between plaintiff and defendant be, and they are hereby, declared forever dissolved.

That the defendant be, and she is hereby, allowed to assume her maiden name, and that she be allowed to marry again. And it is further ordered and adjudged by the court, that the defendant have and recover of plaintiff all her costs in this suit laid out and expended, and that she have execution therefor.”

The answer says that this decree remains unreversed; that said Maria, at the time of making said decree, and ever since, has been fully advised of the same, and has up to the time of this suit fully acquiesced in the same; that she has used the privileges of said decree by assuming her maiden name of Marie E. King, and by that name made herself known and transacted all her business; that defendant herein, in good faith, believing himself duly divorced, on the 22d of June, 1868, married again, and is raising a family of children by the second marriage; that defendant, ever since the former divorce, has continued to reside in Linn County, Missouri, with his last wife and family, and transacted all his business there, with plaintiff's full knowledge.

The plaintiff replies that, after the petition in divorce set out in the answer was filed by the defendant, and before the decree of divorce was entered, the defendant here, the plaintiff in that case, caused the allegations of adultery to be stricken out of his petition; that all the allegations in his petition were known to him to be untrue; that he followed her to New York during the pendency of that suit and wrongfully caused her arrest, to prevent her from procuring testimony; that he got possession of the depositions taken for her in the cause and unlawfully suppressed them; that he intimidated her into signing a stipulation to withdraw all opposition to that suit, and, by threats, intimidation, and cruelty compelled her to admit the charges in the petition that remained after the graver accusations were stricken out; that no proof was offered in support of these charges, and that the decree was collusively procured; that the petition, after the matters spoken of were stricken out, stated no cause of action, and that the decree of divorce is therefore void; that she was compelled, after the divorce, to live in New York for some years without any aid from the defendant, and to support herself as best she could, and that she was too poor to seek redress. The replication further alleges that since the divorce the defendant has slandered and cruelly treated her.

The defendant demurred to the reply. The demurrer was sustained; and the plaintiff declining further to plead, the new matter was taken as confessed. The plaintiff, on the trial, offered evidence tending to prove the allegations of the petition and reply. The testimony was excluded, and the court found for the defendant. The plaintiff brings the case here on appeal

The well-settled rule is, that, if the plaintiff obtain judgment, and by his own showing have no cause for action, yet if the court has jurisdiction of the cause, it is only an erroneous judgment, and is not void. If the court has no jurisdiction of the cause, it is a void judgment. But there can be no doubt that the filing of a petition such as ought not to be held good on demurrer, may confer jurisdiction. Freem. on Judg., sect. 118; McNamara on Nullities, 137. And so it is said: “If the Court of Common Pleas holds pleas in debt, trespass, etc., without an original, it is not void, for they are judges of those pleas, and it cannot be said the proceeding was coram non judice.” Co. 77., pt. 10.

The Circuit Court of Linn County had jurisdiction of the subject-matter and of the parties. It had a right, therefore, to...