Dorrance v. Dorrance

• Decision Date: 20 May 1912
• Parties: EMMA DORRANCE, Appellant, v. JOHN DORRANCE
• Court: Missouri Supreme Court

148 S.W. 94

242 Mo. 625

EMMA DORRANCE, Appellant, v. JOHN DORRANCE

Supreme Court of Missouri

May 20, 1912

Appeal from St. Louis City Circuit Court. -- Hon. R. M. Foster Judge.

Reversed and remanded.

Loomis C. Johnson, Horace H. Blanton and Joseph Wheless for appellant.

The court erred in sustaining defendant's demurrer to plaintiff's amended petition. (1) The allegation in the petition filed in the circuit court of the city of St. Louis by John Dorrance for divorce, and supported by his affidavit that he was a resident of St. Louis, was false (he being a resident of Chariton county, Missouri) and fraudulently made for the purpose of inducing the court to assume jurisdiction of that cause; and a court of equity has inherent power to set aside such a judgment. Sec. 2371, R. S. 1909; Lagerholm v. Lagerholm, 133 Mo.App. 306; Stansbury v. Stansbury, 118 Mo.App. 427; Hinkle v. Lovelace, 204 Mo. 208; Irvine v. Leyh, 102 Mo. 129; Smith v. Lewis, 77 Mo. 270; Murphy v De France, 101 Mo. 151; Wonderly v. County, 150 Mo. 650; Dunlap v. Steere, 16 L.R.A. 361; U. S v. Throckmorton, 98 U.S. 61. (2) The affidavit made by John Dorrance to the petition filed in the circuit court of St. Louis for divorce, that his wife, Emma Dorrance, had absented herself from her usual place of abode in this State, and that she had concealed herself, so that the ordinary process of law could not be served upon her in this State, was false and was a fraud practiced upon the court to induce it to acquire and assume jurisdiction of the person of Emma Dorrance, defendant in that cause; and for this reason service by publication and the judgment rendered thereon are void. Fitzpatrick v. Stevens, 114 Mo.App. 501; Williams v. Gerber, 75 Mo.App. 30; Perry v. Alford, 5 Mo. 503; Bank v. Ward, 45 Mo. 311; Dorn v. Parsons, 56 Mo. 602; Million v. Ohnsorg, 10 Mo.App. 437; Bick v. Tanzey, 181 Mo. 524; Burnett v. McCluey, 78 Mo. 689; Hargadine v. Van Horn, 72 Mo. 370; Wonderly v. County, 150 Mo. 635; Howard v. Scott, 225 Mo. 685. (3) Fraud practiced upon the court in acquiring jurisdiction of the subject-matter or of the person is universally held to constitute sufficient reason for setting aside and annulling a judgment obtained thereby. Howard v. Scott, 225 Mo. 685; Wonderly v. County, 150 Mo. 635; McDermot v. Gray, 198 Mo. 281; Hamilton v. McLean, 139 Mo. 678; Bates v. Hamilton, 144 Mo. 11; Stave Co. v. County, 121 Mo. 630; Irvine v. Leyh, 102 Mo. 206; Richardson v. Stowe, 102 Mo. 43; Murphy v. De France, 101 Mo. 157; Bradley v. Welsh, 100 Mo. 268; McClanahan v. West, 100 Mo. 320; Payne v. O'Shea, 84 Mo. 138; Mayberry v. McClung, 51 Mo. 256; Downing v. Still, 43 Mo. 309; Harris v. Sanders, 38 Mo. 421; Smoot v. Judd, 161 Mo. 686; Fitzpatrick v. Stevens, 114 Mo.App. 497; Tapana v. Shaffrey, 97 Mo.App. 345; 17 Am. & Eng. Ency. Law (2 Ed.), pp. 825-828; State ex rel. v. Bradley, 193 Mo. 42; Edson v. Edson, 108 Mass. 590; Johnson v. Coleman, 23 Wis. 452; Adams v. Adams, 51 N.H. 399. (4) Secs. 2380 and 2381 do not apply to a judgment or decree of divorce concocted in fraud or to cases where there has been no service on the defendant. There is no difference in principle between a proceeding to set aside a decree of divorce obtained by fraud or any other judgment or decree. Irvine v. Leyh, 102 Mo. 209; Cole v. Cole, 3 Mo.App. 571; Richardson v. Stowe, 102 Mo. 33; Nave v. Nave, 28 Mo.App. 515; Rine v. Hodgson, 9 Ohio Dec. 275; Stewart v. Stewart, 141 S.W. 193; Earl v. Earl, 91 Ind. 27; Caswell v. Caswell, 120 Ill. 377; Sloan v. Sloan, 102 Ill. 581; Evans v. Woodsworth, 213 Ill. 407; Fritz v. Fritz, 6 Oh. (N. P.) 258; Edson v. Edson, 108 Mass. 591; Zeitlin v. Zeitlin, 202 Mass. 205; Brown v. Grove, 116 Ind. 84; Willman v. Willman, 57 Ind. 500; Daniels v. Benedict, 50 F. 347; Cheney v. Bryan, 15 Lea, 589; Newcomb v. Newcomb, 13 Bush, 544; Clayton v. Clayton, 4 Colo. 410; Cheely v. Cheely, 110 U.S. 701; Stanton v. Crosby, 9 Hun, 370; Peterson v. Peterson, 6 W. N. C. 449; Ins. Co.'s App., 93 Pa. 242; Smith v. Smith, 3 Phila. 489; Boyd's App., 38 Pa. 241; Johnson v. Coleman, 23 Wis. 452; Everett v. Everett, 60 Wis. 200. (a) The decisions of this court in the case of Salisbury v. Salisbury, 92 Mo. 683, and of the St. Louis Court of Appeals in Childs v. Childs, 11 Mo.App. 395, are not applicable to this case. In neither of these cases was the jurisdiction of the court rendering the decree questioned. As is shown by the petition in the case at bar, and admitted by the demurrer, the lower court in the divorce suit of Dorrance v. Dorrance had jurisdiction over the person of neither of the parties thereto, and hence could not have had jurisdiction to render a decree therein. Its decree was therefore coram non judice and void. Cole v. Cole, 3 Mo.App. 571; Mansfield v. Mansfield, 26 Mo. 165; Irvine v. Leyh, 102 Mo. 209. (b) The extreme doctrine enunciated in the Salisbury case and the strict construction of sec. 2381, Revised Statutes 1909, therein upheld, has been distinctly modified, if not indeed overruled, by a later decision of this court. Richardson v. Stowe, 102 Mo. 43. (c) The doctrine enunciated in the cases of Parrish v. Parrish, 9 Oh. St. 534, and Greene v. Greene 2 Gray, 361, cited and to an extent relied upon in support of the decision of this court in the Salisbury case, has been repudiated or at least greatly modified and restricted by the Supreme Courts of Ohio and Massachusetts, respectively. Rine v. Hodgson, 9 Ohio Dec. 275; Fritz v. Fritz, 6 Oh. (N. P.) 258; Edson v. Edson, 108 Mass. 591; Zeitlin v. Zeitlin, 202 Mass. 205. (5) If secs. 2380 and 2381 are construed to preclude a proceeding to set aside a decree of divorce obtained without service, or concocted in or procured by fraud, appellant is deprived of her property rights as the wife of respondent without due process of law, and said sections are therefore in contravention of the Fourteenth Amendment of the Constitution of the United States and of sec. 30 of article 2 of the Missouri Constitution. Hunt v. Searcy, 107 Mo. 158; Roth v. Gabbert, 123 Mo. 29; Hennig v. Staed, 138 Mo. 434; State v. Loomis, 115 Mo. 312; Jones v. Yore, 142 Mo. 38; State v. Julow, 129 Mo. 174; Scott v. McNeal, 154 U.S. 34; Virginia v. Rives, 100 U.S. 318; Pennoyer v. Neff, 95 U.S. 727; Simon v. Craft, 182 U.S. 427. (6) The petition alleges that the notice published under the order of publication failed to set out and state the causes of action or grounds of divorce. It therefore appears, and is admitted under the demurrer, that the circuit court failed to gain jurisdiction over the defendant. "A notice which falls short in any essential particular of apprising the defendant of the object and general nature of the suit commenced will not be sufficient to authorize a judgment against him." Bobb v. Woodword, 42 Mo. 489; McKelvey v. Wonderly, 26 Mo.App. 632; Wimingham v. Trueblood, 149 Mo. 585; Lumber Co. v. Schuler, 49 Mo.App. 96; Cloud v. Inhabitants, 86 Mo. 366; Lonkey v. Mining Co., 17 L.R.A. 352. Defendant not having been summoned in accordance with the statutory provisions by the decree in the divorce case, has been denied her day in court. Therefore, if the provisions of sections 2380 and 2381 are held to preclude action in this case, they are unconstitutional as depriving the defendant of her property without due process of law, in contravention of the terms of the Fourteenth Amendment to the Federal Constitution and of section 30, article 2 of the State Constitution. Cloud v. Inhabitants, 86 Mo. 366; Railroad v. Schidt, 44 L.Ed. 747; Scott v. McNeal, 38 L.Ed. 901; Pryor v. Downey, 50 Cal. 388; Talpin v. Page, 21 L.Ed. 96.

C. Orrick Bishop, Chilton Atkinson and Bates, Blodgett, Williams & Davis for respondent.

(1) The Missouri decisions settle every proposition urged by the appellant. Smith v. Smith, 20 Mo. 170; DeGraw v DeGraw, 7 Mo.App. 131; Childs v. Childs, 11 Mo.App. 395; Salisbury v. Salisbury, 92 Mo. 683; Nave v. Nave, 28 Mo.App. 505; Hansford v. Hansford, 34 Mo.App. 262; Richardson v. Stowe, 102 Mo. 44; Smith v. Smith, 48 Mo.App. 612; Cole v. Cole, 89 Mo.App. 231. (2) The order of publication was sufficient. McDermott v. Gray, 198 Mo. 283. (3) The wrong remedy has been chosen. 2 Bishop on Mar. and Div., sec. 556; DeGraw v. DeGraw, 7 Mo.App. 126. (4) The point as to jurisdiction is included in and concluded by the judgment. Hansford v. Hansford, 34 Mo.App. 270; Springfield v. Whitlock, 34 Mo.App. 648. (5) Section 2381, Revised Statutes 1909, is constitutional and valid. Parrish v. Parrish, 9 Ohio St. 534; Tappin v. Tappin, 6 Ohio St. 64. (6) Section 2381, Revised Statutes 1909, applies to and bars the plaintiff in this case. Salisbury v. Salisbury, 92 Mo. 683; Childs v. Childs, 11 Mo.App. 395; Nave v. Nave, 28 Mo.App. 505; Hansford v. Hansford, 34 Mo.App. 262; Richardson v. Stowe, 102 Mo. 44; Smith v. Smith, 48 Mo.App. 612; Cole v. Cole, 89 Mo.App. 231; Smith v. Smith, 20 Mo. 170; McGraw v. McGraw, 7 Mo.App. 131. (7) The Constitution does not prohibit the Legislature from denying review or question of a decision of the court by proceeding in equity or otherwise. State v. Loomis, 115 Mo. 312; Railroad v. Lowder, 138 Mo. 533; Johnson v. Railroad, 141 U.S. 611; Stevens v. Delavaulx, 166 Mo. 20; Sprekles v. Refining Co., 117 Cal. 377; Pittsburg v. Backus, 154 U.S. 426. (8) Divorce is a purely statutory proceeding and subject to statutory regulation. In re Kinsolving, 135 Mo.App. 640; Sharp v. Sharp, 134 Mo.App. 280. (9) The rules governing cases involving property rights are not applicable to divorce cases. Hinckle v. Lovelace, 204 Mo. 223; Mangels v. Mangels, 6 Mo.App. 484. (10) Marriage is far more than a civil contract -- it is a status, an institution. The Legislature of every State has the constitutional power to regulate the formation...