Gardner v. Gilbirds, 24243.

• Decision Date: 29 June 1937
• Docket Number: No. 24243.,24243.
• Citation: 106 S.W.2d 970
• Parties: GARDNER v. GILBIRDS et al.
• Court: Missouri Court of Appeals

106 S.W.2d 970

GARDNER v. GILBIRDS et al.

No. 24243.

St. Louis Court of Appeals. Missouri.

June 29, 1937.

Rehearing Denied July 6, 1937.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

"Not to be published in State Reports."

Suit by Lee Gardner against Noel F. Gilbirds, administrator cum testamento annexo of Sarah J. Forgey, Earnestine Horn, and others, to set aside a judgment. Judgment for defendants, and plaintiff appeals.

Affirmed.

Arthur Kreisman and W. E. Powell, both of St. Louis, and May & May, of Louisiana, for appellant.

Walter G. Stillwell, of Hannibal, and John H. Haley, of Bowling Green, for respondents.

SUTTON, Commissioner.

This is a suit in equity to set aside a judgment of the circuit court of Pike county. The judgment was entered in a suit for divorce, instituted by Sarah J. Gardner against Lee Gardner, which judgment grants said Sarah J. Gardner a divorce, and restores her maiden name of Sarah J. Forgey to her.

The petition was filed in said divorce suit on April 26, 1934, during the April term of said circuit court, and the judgment was entered on May 10th, during said term.

Said Sarah J. Forgey died testate on June 10, 1934, her will was duly admitted to probate, and Noel F. Gilbirds was duly appointed and qualified as administrator cum testamento annexo. Lee Gardner duly filed his renunciation of the will. Noel F. Gilbirds, Earnestine Horn, Virginia Gilbirds, Thomas S. Horn, Charles Hammock, Helen Brady Spilker, Donald Spilker, and Bobby Spilker, defendants in the present suit, are devisees or legatees under said will.

On April 26, 1934, the same day the petition in the divorce suit was filed, the defendant in said suit, Lee Gardner, filed his entry of appearance and waiver of service of summons, as follows:

"In the Circuit Court of Pike County, Mo.,

                    April Term, 1934. Sarah J. Gardner
                    Plaintiff, vs. Lee Gardner, Defendant
                                  "Divorce
                

"I, Lee Gardner, defendant in the above entitled cause hereby waive service of summons in the said cause and consent that the said cause may be heard by the said Circuit Court, without being served with summons and hereby enter my appearance.

                            "Lee Gardner, Defendant."
                

The petition in the divorce suit is captioned as follows:

"State of Missouri, County of Pike, ss.

                "In the Circuit Court of Pike County, Mo
                    April Term, 1934. Sarah J. Gardner
                    Plaintiff, vs. Lee Gardner, Defendant."
                

The judgment in the divorce suit recites as follows: "Now, on this day comes the plaintiff in person and by her attorney, Frank J. Duvall, but the defendant although entering his appearance in writing and waives service of summons in said cause and consents that said cause may be heard by said court without being served with summons, fails to appear and this cause coming on to be heard, said defendant comes not but makes default."

The filing of the petition in the divorce suit and the entry of appearance and waiver of service are duly shown both by record entries and by endorsements on the papers.

The record entry with respect to the filing of the petition is as follows: "Now, on the 26th of April, 1934, comes the plaintiff by Frank J. Duvall, her attorney, and files herein petition for divorce and deposits $7.50 to apply on costs."

The record entry with respect to the filing of the entry of appearance and waiver of service is as follows: "Now, on this 26th day of April, 1934, comes defendant Lee Gardner, and files in writing his waiver of service of summons in said cause and consents that said cause may be heard by said court without being served with summons and hereby enters his appearance."

The present suit was commenced on May 23, 1935. The trial was had on October 22, 1935, resulting in a judgment for defendants. Plaintiff appeals.

Appellant insists here that the record of the circuit court shows said court acquired no jurisdiction of his person in the divorce suit and that the judgment in said suit should therefore be set aside. Appellant bases this insistence on two grounds: (1) That the filing of the petition for divorce and the appearance and waiver of service on the same day indicates conclusively that the appearance and waiver was executed prior to the filing of the divorce petition, and that therefore the filing of the appearance and waiver did not give the court jurisdiction; and (2) that the petition for divorce having been filed during the April term of court, the suit was under the law triable at the next term, and that the appearance and waiver filed at the April term did not give the court jurisdiction to try the suit at...