Fincham v. Fincham, s. 38164

• Decision Date: 12 May 1951
• Docket Number: Nos. 38164,38202,s. 38164
• Parties: FINCHAM v. FINCHAM (two cases).
• Court: Kansas Supreme Court

Page 232

231 P.2d 232

171 Kan. 120

FINCHAM v. FINCHAM (two cases).

Nos. 38164, 38202.

Supreme Court of Kansas.

May 12, 1951.

Syllabus by the Court.

1. An order of a trial court to be a final order and appealable must be such an order as would result in a final determination of the action.

2. In an action for divorce, the order from which the appeal was taken is examined and is held not to be a final order so as to be appealable.

3. The record in a proceeding to discharge a receiver and to terminate a receivership is examined and it is held that the order discharging the receiver was not erroneous.

George Barrett, Pratt, and W. D. Jochems, Wichita, argued the cause and Omer Poos, Hillsboro, Ill., was with them on the brief, for Frances M. Fincham.

Paul R. Wunsch, Kingman, and E. E. Sattgast, Wichita, argued the cause and John Madden, Jr., Wichita, was with them on the brief, for Arthur S. Fincham.

SMITH, Justice.

This was an action for divorce and alimony. The appeal is by the defendant from an intermediary order.

The facts so far as they affect this appeal are as follows: Plaintiff began in Sedgwick county, Kansas, an action for divorce from her husband. In her petition she charged extreme cruelty and gross neglect of duty. She described land owned by defendant in five Kansas counties and in Oklahoma and alleged he was worth in excess of $200,000 and that unless restrained he would dispose of it. On the date the petition was filed the trial court made an order restraining the defendant from disposing of his property and directing him to pay temporary support money and attorney fees in the amount of $500. The petition was filed on April 14, 1949, and a summons issued directed to the sheriff of Pratt county. The record discloses that the sheriff's return on this summons shows it was served on April 18, 1949, by leaving a copy in the mail box at his usual place of residence. A certified copy of the order for temporary support money was returned and filed with the summons. On June 1, 1949, counsel for defendant filed a motion to quash this service on the ground that at the time it was had and for a long time prior thereto and at the time the motion was filed defendant was a resident of Arkansas. On June 3, 1949, plaintiff commenced proceedings for service by publication by filing an affidavit that she was unable to obtain service on defendant in Kansas because he had departed the state and was residing at a given address in Arkansas. On the same date counsel for appellee caused a foreign summons to be issued for defendant to the sheriff of Garland county, Arkansas. The sheriff's return on this summons shows it was served on defendant on June 6, 1949. The publication notice specified the answer day as July 16, 1949. On April 16, 1949, notice of lis pendens was duly recorded in the five Kansas counties where the defendant owned the land. On June 17, 1949, affidavit in attachment was filed by the plaintiff and the sheriff's returns show all the lands described in the plaintiff's petition were attached. On June 29, 1949, on the application of the plaintiff a receiver for all defendant's land was appointed. On June 29, 1949, alias summons for defendant was issued to the sheriff of Pratt county. The return of the sheriff shows personal service on defendant on June 30, 1949.

In due time defendant answered setting up as a defense first a judgment in an action in the district court of Pratt county between these same parties, which he claimed was res judicata of any claims of defendant for alimony or any right, title or interest in his property. He also set up in his answer that he had on May 12, 1949, filed an action for divorce from plaintiff in Arkansas, service had been had on plaintiff and on July 5, 1949, an absolute decree of divorce had been granted him. He alleged that this judgment was res judicata of all issues raised by plaintiff in her petition.

The plaintiff replied denying that either one of the above proceedings were res judicata of her rights in this action.

The action proceeded to trial on its merits. The defendant introduced all the files in the Pratt county case showing the final judgment. Defendant then testified that he moved to Arkansas on January 10, 1944 and that he bought a house there and furnished it. There was then some testimony about defendant's property and some transactions with his children. He then offered in evidence authenticated copies of his divorce proceedings in Arkansas and the decree entered on July 5, 1949. Copies of sections of the Arkansas statutes were introduced. The files showed an affidavit sworn to by defendant in his action asking for a warning order in conformity with those statutes, the appointment of an attorney to defend for the plaintiff in this action, the receipt by her of a letter advising her of the action and finally the service on her, her nonappearance, that the plaintiff was a resident of Arkansas and the absolute decree of divorce.

The Arkansas action was brought on May 12, 1949, and he claims service on the defendant on that date. Final judgment was entered on July 5, 1949.

It will be noted the defense filed in this action in the district court of Sedgwick county was the Pratt county judgment and the Arkansas judgment. Naturally one of the important points raised at the trial was whether full faith and credit was to be given the Arkansas judgment. Or stated another way, was service had in the Arkansas action before good service was had in the Kansas action? Such being the case the trial court after hearing the evidence wrote to counsel for both sides a letter in which the court pointed out the sequence of events about as they have been detailed, then stated: 'Therefore at the time the Arkansas decree was obtained, which did not cover any personal or property rights of the parties but only undertook to decree a divorce, there was an actual case pending in the State of Kansas. For that reason I do not believe there is any requirement for this Court to give full faith and credit to the Arkansas decree as such.'

The trial court's letter then continued as follows:

'It has occurred to me that I do not have any showing made as to what the receiver has done in this matter in preserving the assets, neither do I have any particular request as to attorney fees, and since what I have above stated is my attitude on the Arkansas decree, such might be a sufficient final order to be appealable, and if counsel wishes to appeal that phase of it they would prefer to do that before any further decision on my part. What I have so far submitted to you in the above opinion is merely a memorandum opinion and I am not at this time determining any alimony, attorney fees, receiver fees, or other cost and expense.

'I would like to hear from you regarding when you would like to present the matter of attorney fees and receiver fees and cost and expense. If you can agree on a date other than from the 1st to the 12th of May inclusive, I think I can arrange to hear you, unless counsel decides to appeal from the memorandum judgment above set out.'

This letter was subsequently incorporated into the journal entry. The trial court made no other findings or conclusions and entered no further judgment. In due time the defendant filed a motion for a new trial because of abuse of discretion, erroneous rulings, decision contrary to the evidence, the court misinterpreted the evidence and disregarded the evidence. At the same time he filed a motion asking the trial court to set aside its finding that personal service was obtained on him. These motions were both overruled--hence this appeal.

The specifications of error are that the trial court erred in holding that the Arkansas decree was invalid and not entitled to be given full faith and credit.

The defendant states the question involved to be, should a district court in Kansas in a divorce action give full faith and credit to a decree of divorce given by a chancery court in Arkansas in an action between the same parties where the latter action was commenced and constructive service obtained after the filing of the Kansas action but before service of summons in the Kansas action and proceeded to judgment before the Kansas action was tried? Defendant then proceeds to answer the above question in the negative under the head of three different legal propositions.

We are confronted, however, at the outset with the question, whether the order from which the appeal was taken is appealable. Our jurisdiction to reverse, vacate or modify an order of the district court is found in G.S.1949, 60-3302. That section provides, in part, as follows: 'The supreme court may reverse, vacate or modify any of the following orders of the district court or a judge thereof, or of any other court of record, except a probate court. First--A final order. Second--An order that discharges, vacates or modifies a provisional remedy; or that grants, refuses, vacates or modifies an injunction; or that grants or refuses a new trial; or that confirms or refuses to confirm the report of a referee; or that sustains or overrules a demurrer. Third--An order that involves the merits of an action, or some part thereof. Fourth--An order appointing a receiver, or any order refusing to revoke, modify or change any order appointing a receiver, but a failure to appeal shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case'.

If this order comes under any of these provisions it is the first one. Therefore, the question was this a final order? G.S.1949, 60-3303, defines that term. That section provides, in part, as follows: 'A final order which may be vacated, modified or reversed as provided in this article is an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a...