Hanks v. Hanks

• Decision Date: 31 March 1909
• Citation: 117 S.W. 1101,218 Mo. 670
• Parties: HANKS v. HANKS.
• Court: Missouri Supreme Court

117 S.W. 1101

218 Mo. 670

HANKS v. HANKS.

Supreme Court of Missouri, Division No. 1.

March 31, 1909.

1. COURTS (§ 231)—SUPREME COURT—JURISDICTION—CONSTITUTIONAL QUESTION—TIME OF RAISING.

In a divorce action, where the answer alleged as a defense an Iowa judgment granting defendant a divorce from plaintiff, and the reply alleged that the judgment was void as contravening state and federal constitutional provisions stated, the constitutional question was duly raised so as to give the Supreme Court jurisdiction, as it could not be raised earlier than the reply.

2. APPEAL AND ERROR (§ 511)—ABSTRACT— SUFFICIENCY—BILL OF EXCEPTIONS.

Where the abstract contained what purported to be a bill of exceptions, but did not show that the bill of exceptions was actually filed, or contained any record entry of the filing, the abstract was insufficient to permit consideration of the bill of exceptions.

3. APPEAL AND ERROR (§ 511)—ABSTRACT— RECITALS — RECITALS IN BILL OF EXCEPTIONS.

That a bill of exceptions was made a part of the record must be shown by the record entry, and cannot be shown by recitals in the bill itself.

4. APPEAL AND ERROR (§§ 529, 534)—RECORD —MATTERS INCLUDED—JUDGMENT AND ORDER OF APPEAL.

Neither the judgment nor the order granting the appeal belong in the bill of exceptions, they being part of the record proper.

5. APPEAL AND ERROR (§ 554)—RECORD—BILL OF EXCEPTIONS—EFFECT OF ABSENCE—DISMISSAL.

On appeal on a short transcript, where the certified copy of the judgment and order of appeal is on file and all the pleadings are properly abstracted, the appeal will not be dismissed because the abstract does not contain a sufficient bill of exceptions, but judgment will be reversed or affirmed on the pleadings and judgment.

6. PLEADING (§ 310)—EXHIBITS ANNEXED TO ANSWER—EFFECT.

Where the answer in a divorce action pleaded an Iowa judgment of divorce previously granted defendant, and averred that copies of such proceedings were attached as "Exhibit A" and made a part of the answer, the exhibit was not thereby made a part of the answer, and could not be considered as a part of it.

7. APPEAL AND ERROR (§ 554)—RECORD—BILL OF EXCEPTIONS—EFFECT OF ABSENCE.

Where the record does not contain a sufficient bill of exceptions, the judgment will be affirmed if it is proper under the pleadings.

8. APPEAL AND ERROR (§ 907)—REVIEW—PRESUMPTIONS—CONFORMITY OF JUDGMENT TO PLEADINGS.

Where, in a divorce action, the answer alleged a prior judgment of divorce granted defendant in Iowa, and averred that plaintiff herein was duly and legally served in that action, the allegations were sufficient to sustain the judgment pleaded, in the absence of a bill of exceptions showing the evidence, as it will be presumed that the evidence supported the judgment.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by Thomas P. Hanks against Mary E. Hanks. From a judgment for defendant, plaintiff appeals. Affirmed.

H. S. Julian, for appellant. Ellis & Cook (Clyde Taylor, of counsel), for respondent.

GRAVES, J.

The plaintiff sued the defendant in the circuit court of Jackson county for a divorce, on the alleged grounds: (1) That she had absented herself for the space of one whole year without reasonable cause; (2) that she had been guilty of adultery with a certain named individual, not necessary here to state; (3) and of certain indignities in the petition described.

Defendant filed an answer, denominated an "answer in abatement," in which she denies the scandalous and other charges of the petition, and then she pleads a judgment and decree of divorce entered and made by the district court of Polk county, Iowa, on May 3, 1905, whereby she was divorced from the plaintiff. This decree and all the files in the case duly certified according to the act of Congress is attached to the answer as "Exhibit A," and, in the language of the answer, "is hereby made a part of this plea in abatement."

The reply to this answer reads:

"The plaintiff, for reply to the averments of defendant's answer:

"(1) Denies each and every allegation therein contained, and asks for judgment on his petition.

"(2) Plaintiff further states that defendant was not a resident of the state of Iowa, and the courts of that state never had jurisdiction over either plaintiff or defendant, but that both were residents of Jackson county, Mo., and defendant was simply sent to Iowa for the purpose of trying to procure a bogus and spurious decree of divorce against this plaintiff.

"(3) Plaintiff further states that under section 2947, Rev. St. Mo. 1899 (Ann. St. 1906, p. 1699), a wife divorced from her husband for his fault or misconduct retains dower rights in all property of the husband, and, if this alleged judgment of the Iowa court is allowed to stand and bind plaintiff, it is equivalent to a judgment against his character, also a judgment against his property, and casts a cloud upon any real property he may have possessed at the time said judgment was rendered or hereafter may possess, without personal service, and without a day in court, which would be a violation of plaintiff's rights under sections 10 and 30, art. 2, of the Constitution of Missouri (Ann. St. 1906, pp. 132, 166), also of his rights under the fifth amendment, and section 1 of the fourteenth amendment to the Constitution of the United States.

"(4) Plaintiff further states that said alleged decree was procured by fraud, misrepresentation, and deceit practiced and wrought (by defendant here and plaintiff there) upon said Iowa court, in this: She had her pretended suit instituted by M. E. Hanks, Plaintiff, v. T. P. Hanks, Defendant, and got an order of publication for service in the same initials, when she well knew that her Christian name was Mary and his Thomas, and that they were known and called by such names; and plaintiff charges it to be a fact that said initials were used as aforesaid, instead of their Christian names, for the purpose of deceiving the court and its officers, and also for the purpose of misleading any one reading said notice, and making it extremely improbable that any one reading said notice would be able to detect who the real parties to said suit were. And plaintiff says that on account of said Mary E. Hanks not instituting said suit in the real names of the parties, that said court never got nor could get jurisdiction of either party, or of the cause, and that said alleged decree is spurious, bogus, and should be for naught held.

"(5) Plaintiff further says that said alleged Iowa decree can have no extraterritorial effect or force, and cannot bind this plaintiff, that he has never been subject to said court's jurisdiction, nor was he served with actual notice to appear and defend said suit, but that his domicile has been in Jackson county, Mo., where plaintiff and defendant were married and lived during the entire term of their married life."

In the record before us there are two preliminary matters to determine before we reach the merits of this case: First, has this court jurisdiction? Secondly, have we before us such an abstract of record as, under our rule, permits us to examine into the merits of the cause? The latter inquiry is raised by counsel, the former we raise ourselves, for, if we have no jurisdiction, we shall so determine, but leave untouched all other matters.

1. As to our jurisdiction, it occurs to us that constitutional questions are properly and timely raised in the third paragraph of the reply. The effect of this pleading is to aver that the judgment of the Iowa court upon service by publication was void, because violative of the constitutional provisions, both state and federal, therein specifically named. Whether there is merit in the question raised is for us to determine, but, being timely raised, it is sufficient to give us jurisdiction. The invalidity of this Iowa decree could not have been raised earlier than in the reply, for it appears for the first time in the answer. As was well said by Lamm, J., in Lohmeyer v. St. Louis Cordage Co. (Mo.) 113 S. W., loc. cit. 1110: "But it must be taken as settled law that in so grave a matter as a constitutional question it should be lodged in the case at the earliest moment that good pleading and orderly procedure will admit under the circumstances of the given case, otherwise it will be waived. Barber Asphalt Co. v. Ridge, 169 Mo., loc. cit. 387, 68 S. W. 1043 et seq. If plaintiff grounds his right of action on a statute which defendant contends is unconstitutional, it should be put in the answer and kept alive. If the defendant grounds an affirmative defense on a statute that plaintiff contends has a like vice, it would seem he should plead its unconstitutionality in the reply, though that has been questioned. Kirkwood v. Meramec Highlands Co., 160 Mo. 111, 60 S. W. 1072. If proper to put it in instructions, it should be lodged there and the ruling of the court invoked."

Whether the doctrine announced by Judge Lamm is in conflict with the case he cites— Kirkwood v. Meramec Highlands Co., 160 Mo. 111, 60 S. W. 1072—may be debatable, but we hardly think there is serious conflict. First, in the Kirkwood Case, the pleader failed to point his finger to a single constitutional provision which was violated by the law pleaded. The language used was, "is unconstitutional, null, and void, and is no law of the state of Missouri binding upon the plaintiff." Under this pleading no constitutional question was raised in the pleadings, for we have always held that the plea must point to the portion of the Constitution which is being invoked. The constitutional provision not being properly pleaded, and the instructions not presenting such question, Burgess, J., rightfully held that the question was not in the case. Some of the language might be interpreted to mean that such question could not be...