Dorrance v. Dorrance

• Citation: 165 S.W. 783,257 Mo. 317
• Parties: DORRANCE v. DORRANCE.
• Decision Date: 02 April 1914
• Court: United States State Supreme Court of Missouri

165 S.W. 783

257 Mo. 317

DORRANCE v. DORRANCE.

Supreme Court of Missouri.

April 2, 1914.

1. DIVORCE (§ 167) — DECREE — VACATION — FRAUD.

Rev. St. 1909, § 2381, forbidding a petition for review of a judgment for divorce, does not prohibit the vacation of a divorce decree in equity for fraud, since, if so construed, it would be in violation of Const. art. 6, §§ 1, 22, as depriving the circuit courts of a portion of their ancient equity jurisdiction.

2. PLEADING (§ 406)—CAUSES OF ACTION— MISJOINDER—WAIVER.

Rev. St. 1909, § 1800, provides that, when several causes of action have been improperly united, defendant may call attention to such misjoinder by demurrer, and section 1804 declares that all objections to a petition enumerated in section 1800 not raised by demurrer or answer shall be deemed waived except, etc. Held that, where no objection was raised by demurrer or answer to alleged misjoinder of a cause of action to set aside a divorce decree for fraud, with a statutory action by the wife for maintenance, the misjoinder, if any, was waived.

3. HUSBAND AND WIFE (§ 295)—MAINTENANCE —TEMPORARY ALLOWANCE.

Where a wife promptly sued to set aside a divorce decree obtained by her husband for gross fraud, the existence of the decree between the time of its rendition and the institution of the suit did not preclude complainant from obtaining an allowance for maintenance during such period.

4. HUSBAND AND WIFE (§ 295)—SUIT FOR MAINTENANCE—ATTORNEY'S FEES.

A wife may have an allowance for attorney's fees for prosecuting a suit for maintenance, though such fees are not expressly authorized by Rev. St. 1909, § 8295, authorizing a wife to maintain a suit for maintenance.

5. HUSBAND AND WIFE (§ 19)—MAINTENANCE OF WIFE—NECESSARIES—LIABILITY OF HUSBAND.

At common law a husband is liable to a third person for necessaries furnished to his wife, when the husband has neglected to supply her with reasonable support.

6. HUSBAND AND WIFE (§ 301)—MAINTENANCE —ATTORNEY'S FEES.

Where a wife was required to successfully maintain a suit to set aside a divorce decree obtained against her by her husband, for fraud, before she could sue for maintenance, an allowance for attorney's fees for prosecuting the suit to set aside the divorce was properly taxable under a count of her petition for separate maintenance.

Bond, J., dissenting.

In Banc. Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by Emma Dorrance against John Dorrance. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 242 Mo. 625, 148 S. W. 94.

Action to set aside divorce and for maintenance and suit money. From a decree for plaintiff, defendant appeals.

Plaintiff's amended petition, upon which the trial below was had, charges that on May 25, 1906, she was the lawful wife of defendant; that on said last-named date defendant instituted a suit against her for divorce in the circuit court of St. Louis city; that defendant fraudulently induced said circuit court to assume jurisdiction of said suit by falsely alleging in his petition that he was a resident of St. Louis city, when, in truth and in fact, he was at that time a resident of Chariton county, Mo.; that, at the time said action for divorce was instituted by defendant, he well knew that plaintiff was a resident of Kansas City, Mo., and could be served in said city with a summons; that, for the purpose of fraudulently procuring a divorce from the plaintiff without her knowledge, defendant made and attached to said petition for divorce an affidavit falsely alleging and reciting "that this plaintiff had absconded from her usual place of abode, and that, although said John Dorrance had diligently sought to locate her, he was unable to do so or to learn her whereabouts, and that this plaintiff had concealed herself so that the ordinary process of law could not be served upon her in this state, and praying therefore an order of said court that notice of said suit be given by publication;" that upon such false allegations in said petition, and the affidavit attached thereto, defendant fraudulently caused and induced the circuit court of said city of St. Louis to issue an order of publication, whereby said court attempted to obtain jurisdiction of plaintiff; that, by reason of said fraudulent acts of plaintiff in bringing said suit for divorce in a county where he did not reside, and by serving her with publication when her address and whereabouts in this state were personally known to said defendant, she obtained no knowledge of the pendency of said action and made no defense thereto; that on November 9, 1906, defendant, by certain false and perjured evidence, induced the circuit court of St. Louis city to grant to him a divorce from plaintiff on grounds which had no existence in fact, which said divorce was obtained at an ex parte hearing, without any knowledge on the part of plaintiff that said suit had been instituted. Wherefore plaintiff prayed that, on account of the aforesaid fraudulent acts of defendant, said judgment of divorce be set aside, and that plaintiff be restored to the marital rights which existed between her and defendant before said judgment was entered.

A second count in plaintiff's petition charges defendant with living in open adultery with a negro woman, and other gross violations of his marital obligations, whereby it was rendered impossible for plaintiff and defendant to live together in the future as man and wife. Wherefore plaintiff prayed that defendant be required and adjudged to pay to her a reasonable attorney's fee for prosecuting this action; a reasonable allowance for her support; and a reasonable sum for her support during the pendency of this action.

To this petition defendant interposed a general demurrer, which was by the trial court sustained, and, plaintiff declining to plead further, a final judgment was rendered against her, from which she appealed to this court. Upon a hearing of her appeal by this court, the judgment of the circuit court of St. Louis city was reversed, and the cause remanded. See Dorrance v. Dorrance, 242 Mo. 625, 148 S. W. 94, where the allegations of plaintiff's petition are more fully recited. When the cause was remanded to the circuit court, the defendant filed a general denial, but did not, either by demurrer or answer, allege that there was a misjoinder of causes of action in plaintiff's petition.

Upon a retrial of this cause in the circuit court of St. Louis city on December 20, 1912, that court made a finding in favor of plaintiff on the first count of her petition, and set aside the divorce, and adjudged the defendant to pay the plaintiff $7,500 for her attorney's fees in prosecuting this cause. On the second count of her petition, the finding was for defendant, and it was adjudged that said second count be dismissed without prejudice.

On the 31st day of December, 1912, during the same term at which the decree of December 20, 1912, was entered, the plaintiff filed her motion to modify the judgment, by which the second count of her petition was dismissed, and to allow her on said second count $6,000, being the amount expended for her support and expenses incurred in prosecuting this cause, and $2,500 per annum for her permanent separate support and maintenance. On January 31, 1913, being a part of the same December term, the plaintiff's motion to modify coming on to be heard, and both parties appearing, the court set aside and vacated its judgment of December 20, 1912, and the cause was again submitted upon the pleadings and evidence theretofore adduced. The court thereupon found in favor of the plaintiff on both counts of her petition. On the first count the court set aside the decree of divorce, as prayed, and restored plaintiff to all her marital rights as the wife of defendant. And on the second count in her petition the court, of its own motion, awarded her $7,500 attorney's fees incurred in bringing and prosecuting this action, and also awarded her $6,000 for her support and maintenance since the 25th day of May, 1906, and a further allowance of $2,500 per annum for her future support and maintenance, which latter amount the court decreed should be paid in monthly installments on the 15th day of each month, beginning on the 15th day of February, 1913, and retained jurisdiction of the cause for the entry of such further orders touching the allowance of maintenance and suit money as may hereafter be deemed proper.

From this last-mentioned or modified judgment, the defendant appealed, and, without bringing up the evidence upon which the judgment is predicated, asserts: (1) That we should, upon the record proper, reconsider and reverse the rule and decision announced by this court when the cause was here upon the first appeal; (2) that plaintiff is not entitled to any of the relief granted to her under the second count of her petition, because an action for maintenance cannot be coupled with an action for equitable relief; (3) that, as plaintiff was not the wife of defendant between November 9, 1906 and January 31, 1913 (while the decree of divorce was in force) no allowance can be made for her support during that period of time; and (4) that there is no law to support plaintiff's allowance for attorney's fees.

C. Orrick Bishop, of St. Louis, and Gerson B. Silverman, of Kansas City, for appellant. Loomis C. Johnson, of St. Louis, and Horace H. Blanton, of Kansas City, for respondent.

I. Relief Against Fraudulent Divorce.

BROWN, J. (after stating the facts as above).

We decline to recede from the rules of law announced in our majority opinion when this case was here upon the first appeal. 242 Mo. 625, 148 S. W. 94. If section 2381, R. S. 1909, forbidding a petition for the review of a judgment for divorce, is intended to prohibit relief in equity against such frauds as were perpetrated upon the circuit court and upon the plaintiff in obtaining the divorce granted to defendant, then clearly...