Dorrance v. Dorrance
| Decision Date | 02 April 1914 |
| Citation | 165 S.W. 783,257 Mo. 317 |
| Parties | EMMA DORRANCE v. JOHN DORRANCE, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Eugene McQuillin Judge.
Affirmed.
C Orrick Bishop and Gerson B. Silverman for appellant.
(1) By Sec. 2380, R. S. 1909, appeals in divorce suits must be allowed at the term in which the judgment or decree appealed from, was rendered, or a writ of error must be sued out within sixty days after the rendition of the judgment. Section 2381 is as follows: "No petition for review of any judgment for divorce, rendered in any case arising under this chapter, shall be allowed, any law or statute to the contrary notwithstanding." The amended petition upon which the judgment of the lower court is supported, is a bill of review; the statute is clear and emphatic; the courts are powerless to legislate an exception into it. In the light of the dissenting opinion by Woodson, J., in Dorrance v Dorrance, 242 Mo. 666, and the authorities therein cited, the per curiam opinion then rendered ought now be overruled, and the Supreme Court in this proceeding can correct the error that it committed in that decision. Salisbury v. Salisbury, 92 Mo. 683. (2) The court had no jurisdiction over the subject-matter alleged in the second count of plaintiff's amended petition. The court had no power, right, or jurisdiction to hear any evidence at all upon the second count of plaintiff's amended petition, or determine any alleged wife abandonment and failure to support. The foundation and the jurisdiction given to the court for the enforcement of Sec. 8295, R. S. 1909, is that the plaintiff, at the institution of the suit and at the trial of the cause under the second count of the petition, must be the wife of the defendant. The entire record of this case, up to the 20th day of December, 1912, up to the date of the trial of this case, shows that the efforts made in the circuit court and then in the Supreme Court by way of obtaining evidence, and by way of legal services rendered, and the Supreme Court's decision itself, in 242 Mo. 625, shows beyond any question at all, that the only matter considered, fought for, and finally determined up to the date of the trial of and the judgment rendered was the sole question in equity of setting aside the alleged fraudulently procured judgment for divorce, and previous to said trial the matters contained in the second count of the amended petition as to the question of abandonment and refusal to support was not even mentioned by way of record, or by any of the attorneys in the cause. The final judgment rendered in the divorce proceeding is not open to inquiry in a collateral proceeding, and such judgment cannot be impeached or attacked collaterally by a party to the judgment. Johnson v. Stebbins, 167 Mo. 325; Bedford v. Sykes, 168 Mo. 8. The want of jurisdiction over the subject matter of an action may be taken advantage of at any time. Henderson v. Henderson, 55 Mo. 534; State v. Railroad, 187 Mo. 439; Thomas v. Mercantile Co., 114 Mo.App. 109. Want of jurisdiction of the subject matter cannot be waived. Graves v. McHugh, 55 Mo. 499; Davis v. Jacksonville, 126 Mo. 69. Te entitle the plaintiff to separate maintenance she must be the valid wife. Pyatt v. Pyatt, 90 Ill.App. 210. If a husband deserts his wife without justifiable cause and fails to support her, it shall be the duty of the court to award her maintenance as long as the desertion continues. "It is beyond the power of the court to commingle the two causes of action." Sharpe v. Sharpe, 134 Mo.App. 281.
Loomis C. Johnson and Horace H. Blanton for respondent.
(1) This court reversed the judgment of the circuit court, sustaining a general demurrer to plaintiff's petition, which contained two counts; and that decision is res adjudicata as to all matters contained in that petition. Dorrance v. Dorrance, 242 Mo. 625; Story's Eq. Pl. (9 Ed.), sec. 446, p. 375; Johnson v. United Railways, 243 Mo. 278; Ins. Co. v. Smith, 117 Mo. 296; Spratt v. Earley, 199 Mo. 502; Chapman v. Railroad, 146 Mo. 494; Gwin v. Waggoner, 116 Mo. 151; Ables v. Ackley, 133 Mo.App. 600; Fisher v. Patton, 134 Mo. 51. (2) The court had the inherent power under its equity jurisdiction as well as under Sec. 8295, R. S. 1909, to adjudge and decree to plaintiff support and maintenance and attorney's fees. 2 Story's Eq. Jur. (13 Ed.), p. 757, sec. 1423a; 2 Am. & Eng. Ency. of Law (2 Ed.), p. 99; 9 Ib., pp. 739, 740; Wyrick v Wyrick, 162 Mo.App. 732; Hedrick v. Hedrick, 157 Mo.App. 636; Behrle v. Behrle, 120 Mo.App. 680; Harding v. Harding, 144 Ill. 597; Johnson v. Johnson, 125 Ill. 510; Long v. Long, 78 Mo.App. 32; Cochran v. Cochran, 42 Neb. 612; Smithson v. Smithson, 37 Neb. 535; Shrader v. Shrader, 36 Fla. 515; Mitchell v. Mitchell, 72 P. 1054; Pickel v. Pickel, 243 Mo. 641; Daniels v. Daniels, 10 P. 668; Stewart v. Stewart, 141 S.W. (Ark.), 193. (3) The marital relation or the rights growing out of that relation is the subject of this action, and the count to set aside the decree of divorce for fraud and the count for support and maintenance were properly joined. Sec. 1795, R. S. 1909; Bliss on Code Pleading (2 Ed.), secs. 125, 126; Morrison v. Herrington, 120 Mo. 668; Henderson v. Dickey, 50 Mo. 161; Ziedeman v. Molosky, 118 Mo.App. 106; Burnside v. Weyman, 49 Mo. 358; Baker v. Daniel, 178 Mo. 447; Shinn v. Guyton, 109 Mo.App. 557; McHovey v. Ins. Co., 44 Mo.App. 428; Blair v. Railroad, 89 Mo. 394; Courtney v. Blackwell, 150 Mo. 245; Duvall v. Tinsley, 54 Mo. 93; Lane v. Dowd, 172 Mo. 174; Jewett v. Railroad, 45 Mo.App. 58; Hamlin v. Tucker, 72 N.C. 502.
OPINION
In Banc
-- 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, Missouri.
That at the time said action for divorce was instituted by defendant he well knew that plaintiff was a resident of Kansas City, Missouri, 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 re-trial 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...
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