148 S.W. 94
242 Mo. 625
Supreme Court of Missouri.
March 20, 1912.
1. PLEADING (§ 245)—AMENDMENTS—FILING —RECORD.
After defendant had entered into a stipulation for his appearance, and before answer or demurrer had been filed, plaintiff filed an amended petition which was properly indorsed by the clerk with the serial and division numbers and which was marked, "Copy received on the 17th day of May," with the signature of defendant's attorneys. Held, under Rev. St. 1899, § 661, authorizing a petition to be amended as of course at any time before the answer or reply thereto shall have been filed, that, the amended petition having superseded the original petition, an order directing a nunc pro tunc entry of the filing was proper in view of Rev. St. 1909, § 1861, providing that all returns made by any sheriff or other officer may be amended in matters of form by the court in which such return shall be made for the filing and not the ministerial act of the clerk in noting the date of filing is the condition precedent to the amendment of the pleading.
2. COURTS (§ 231)—SUPREME COURT—JURISDICTION—"CONSTRUCTION."
In a suit to set aside a decree of divorce because obtained through fraud, the petition alleged that substituted service was had only because of willfully false affidavits, and that, if the statute prohibiting petitions to review judgments of divorce applied to this case, it was unconstitutional because working a deprivation of property without due process of law. Held, that the Supreme Court had jurisdiction of an appeal from an order sustaining a demurrer to the petition because it has exclusive jurisdiction in cases involving the "construction" of the Constitutions of the United States and the state, which term signifies determining the meaning and proper effect of language by a consideration of the subject-matter and attendant circumstances, and, the petition having in good faith alleged that the statute worked a deprivation of property without due process of law, the question of its constitutionality is presented, even though the appeal might be disposed of on other grounds.
3. CONSTITUTIONAL LAW (§ 277)—"DUE PROCESS OF LAW"—SUBJECTS INCLUDED.
Those constitutional provisions prohibiting the deprivation of property without due process of law, which, like the law of the land, is a law which hears before it condemns and renders judgment only after trial, apply to marital rights; the contract of marriage being a civil contract which carries with it many property rights and which cannot be abrogated by legislative enactment.
4. CONSTITUTIONAL LAW (§ 309)—DUE PROCESS OF LAW—WHAT CONSTITUTES.
A judgment of divorce which disposes of both property and marital rights is void because working a deprivation of property without due process of law when based on substituted service which in turn was based on willfully false testimony.
5. JUDGMENT (§ 443)—EQUITABLE RELIEF— VACATION—FRAUD.
Fraud will vitiate even the most solemn transactions, and judgments of record may be set aside because of fraud.
6. CONSTITUTIONAL LAW (§ 48)—DETERMINATION OF QUESTIONS—CONSTRUCTION OF STATUTES—AMBIGUITIES.
In construing a statute, the court must not only take into consideration the words to be interpreted and applied, but if there is any doubt or uncertainty as to the meaning, or if the enactment is fairly susceptible of two or more constructions, that interpretation which will avoid the effect of unconstitutionality should be adopted.
7. DIVORCE (§ 167)—PROCEEDINGS—SUIT TO SET ASIDE.
Rev. St. 1909, § 2381, first enacted in R. S. 1855, c. 55, provides that no petition for review of any judgment for divorce shall be allowed, any law or statute to the contrary notwithstanding. By Laws 1849, p. 103, §§ 8, 9, the Code was adopted and the distinction between law and equity abolished, and by Rev. St. 1855, c. 128, § 13, provision was made that judgments rendered on substituted service might be modified on petition for review if filed within three years after final judgment. Held, that the statute first mentioned does not prevent a suit in equity to set aside a judgment because obtained on constructive service by fraud and willfully false testimony so as to prevent the defendant from having notice of the action; that enactment referring to the statutory petition for review and not to equitable bills of review and bills in the nature of bills of review, in which class the present case falls.
In Banc. Appeal from St. Louis Circuit Court; R. M. Foster, Judge.
Action by Emma Dorrance against John Dorrance. From a judgment sustaining a demurrer, plaintiff appeals, and defendant prosecutes a cross-appeal from an order making an entry nunc pro tunc. Reversed and remanded.
There are two appeals in this case. The plaintiff appeals from the final judgment of the circuit court dismissing her petition upon her refusal to plead further after a general
[148 S.W. 95]
demurrer had been sustained. The defendant afterwards appealed, during the pendency of the case in this court, from an order of the trial court entering upon its records a statement nunc pro tunc in said cause as follows: "Amended petition filed May 17, 1907." The second appeal being for the purpose of enabling the court to judge of the true state of the record, it is plain that they should both be tried together, and it has been so ordered.
The case is a suit in equity to set aside a decree of divorce in the circuit court of the city of St. Louis in favor of this respondent and against the appellant. It was instituted by the filing of the petition in the St. Louis circuit court on October 27, 1907, returnable at the succeeding June term, to which the defendant entered his appearance by stipulation dated May 3, 1907. The original petition contained no mention of the Constitution of the state of Missouri or of the United States.
The nunc pro tunc entry set out above refers to the amended petition copied in the appellant's abstract, and which the appellant claims, and the court found, was filed in the office of the clerk on the day mentioned in the order. On the hearing of the motion asking for the entry nunc pro tunc, Mr. Alexander M. Lewis, the chief deputy clerk of the St. Louis circuit court, was called and asked to identify certain entries and marks on the back of the amended petition, and stated that he placed thereon the following, "254 Series A, June term, 1907, Div. 9"; that this was done on or before the Saturday which was the last day for the filing of suits for the June term, and indicated, according to his uniform method, that the cause at that time was assigned by him to Division 9 of the court. He also stated that the figures 45794, the serial number of the case, must, in accordance with such method, have been placed by him on the pleading as early as the week before the first day of the June term.
The following entry, about the genuineness of which no question has been suggested, also appears on the back of this pleading: "Copy received this 17th day of May, 1907. [Signed] Martin A. Seward, C. B. Crowley, attorneys for defendant." These are the same attorneys who entered defendant's appearance, and Mr. Seward signed the demurrer from the action of the court upon which the appeal was taken.
The amended petition states, in substance, that the plaintiff is and was at all times mentioned in it the wife of the defendant, who on or about May 25, 1906, and during the April term, filed in the circuit court for the city of St. Louis a suit for divorce against plaintiff, returnable to the October term, 1906, in which it was alleged as grounds for divorce that the plaintiff had, for the space of one year, absented herself from him without reasonable cause; that she had offered him such indignities as to render his condition intolerable; and that at the time of her marriage with him she was, and still remained, impotent.
That on the 1st day of June, 1906, and at the April term of said court, he presented to the judge of Division 9 his affidavit, wherein it was alleged that plaintiff had absconded from her usual place of abode, and that, although he had diligently sought to locate her, he was unable to do so or to learn her whereabouts, and that she had concealed herself so that the ordinary process of law could not be served on her in this state, and praying an order that notice of the suit be given by publication. That each recital of said affidavit was false; that plaintiff had not absconded or concealed herself, and that her actual residence and address, which was in the city of Kansas City, state of Missouri, was at the time well known to him; that he, for the purpose of attempting to secure a decree of divorce from her without her knowledge, so that she would not have the opportunity to appear and defend and defeat the said suit, and for the purpose of falsely and fraudulently conferring a pretended jurisdiction on said court over her person, falsely and willingly made the said affidavit, knowing that the same was a fraud on the court and on this plaintiff and her most sacred rights. That the judge of court was deceived by said false affidavit, and on the last-named date made an order directing that notice of the suit be given by publication in a newspaper published in the city of St. Louis; that a publication purporting to be the order of the court was published four times in the "Star-Chronicle," but said publication was not a lawful notice to plaintiff of the bringing of said suit because it was based on said false affidavit, because said publication was preceded by a statement that the order was made at the June term, whereas it was in fact made at the April term, and because it failed to set out the grounds of divorce alleged in the petition, and was therefore insufficient to confer jurisdiction on the court.
That afterward on the 8th day of October, 1906, and at the October term, default was entered against her and the...