Harper v. Harper, 23983
| Decision Date | 01 June 1964 |
| Docket Number | No. 23983,23983 |
| Citation | 379 S.W.2d 889 |
| Parties | Helen HARPER, Appellant, v. Charles M. HARPER, Respondent. |
| Court | Missouri Court of Appeals |
J. Nelson Thompson, Kansas City, for appellant.
Josephine Myers, Kansas City, for respondent.
MAUGHMER, Commissioner.
The trial court set aside plaintiff's default divorce decree and she appeals from the denial of her motion for rehearing. Respondent has not favored us with either a brief or oral argument. Appellant has not briefed the very important question as to whether or not there is here a final judgment from which an appeal lies.
On April 17, 1963, Helen Harper, plaintiff, filed her petition for divorce from defendant Charles M. Harper. On this same date she filed an 'Entry of Appearance and Waiver', which was signed and sworn to by the defendant. We set out the contents:
'I, Charles M. Harper, of lawful age, having first been duly sworn on my oath, state that I am the defendant in the above cause of action now pending in the Circuit Court of Jackson County, Missouri; that I acknowledge the receipt of the Petition for Divorce and Summons, and waive the issuance and service of Summons upon me, and I hereby voluntarily enter my appearance in the above entitled cause, and consent that this case may be set down for trial and disposition at any time that suits the convenience of the Court without further notice to me.'
Thereafter the court heard the testimony of plaintiff and her two character witnesses and on June 26, 1963, entered a default decree by which plaintiff was granted a divorce and custody of the one minor child. On July 8, 1963, defendant filed a motion to set aside this default judgment. Therein he alleged facts suggesting fraud in procurement and, in addition to requesting that the decree be set aside, prayed for permission to withdraw his Entry of Appearance, and file a cross bill. Before the court took any action thereon defendant filed a second motion to set aside the judgment for want of jurisdiction, alleging the 'purported entry of appearance' was signed prior to the filing of plaintiff's petition and therefore was a nullity and insufficient to confer jurisdiction. Plaintiff alleged that defendant was a resident of Kansas and asked that he be required to post bond for costs as a prerequisite to consideration of his motions.
On July 19, 1963, the court made and entered the following order:
'Now on this day come the parties in person and by their respective attorneys, and in open court plaintiff files objections to defendant's motion to set aside decree of divorce, and motion to compel defendant to post bond, and now defendant's motion to set aside decree of divorce heretofore entered is by the court heard and sustained.
'Therefore it is ordered and adjudged by the court that the decree of divorce heretofore entered be and the same is hereby set aside and for naught held'. (Italics ours).
It will be noted this order did not dismiss the cause, but rather set aside the judgment and was made within 30 days after entry of the default decree. Thereafter the court allowed plaintiff, pursuant to her motion, temporary alimony and suit money. Plaintiff submitted motion for rehearing, which the court overruled. She then filed the following Notice of Appeal:
'Notice is hereby given that Helen Harper, the plaintiff above-named, hereby appeals to the Kansas City Court of Appeals from the decision of the Circuit Court of Jackson County, Missouri, at Independence in overruling Plaintiff's Motion for Rehearing * * *'.
On her appeal plaintiff cites numerous authorities and strenuously argues that in a divorce case an entry of appearance and waiver of process confers jurisdiction as to the person, even though such document was executed prior to the commencement of the suit. She also contends that when defendant filed his first motion to set aside the decree based upon fraud in procurement, he made a general appearance and it was then too late for him to appear specially to question the jurisdiction only. She urges further that since defendant was a resident of Kansas his motions were not determinable unless and until he posted bond. Plaintiff's contentions in these respects may be sound but we must first determine if an appeal lies from the trial court order setting aside the judgment, or as plaintiff stated it, from the order overruling her motion for rehearing. It is our duty to make such an inquiry sua sponte. Dotson v. E. W., Bacharach, Inc., et al., Mo., 325 S.W.2d 737.
It is fundamental or at least well settled that the right to appeal is purely statutory, and that the right of appeal does not exist except where expressly given. Bussiere's Adm'r. v. Sayman, 257 Mo. 303, 165 S.W. 796; 798. Section 512.020, V.A.M.S. provides in part: 'Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his appeal to a court having appellate jurisdiction from any order granting a new trial, * * * or from any final judgment in the case or from any special order after final judgment in the cause; * * *'. (Italics supplied).
Is there here left any final judgment upon which to base the appeal? Clearly not, because the motion to set aside being acted upon favorably by the court has utterly wiped the final judgment off the record and off the face of the earth. It is not and cannot be an appeal from a final judgment because such a term could only be applied where a final judgment still existed, not in a case where it had utterly ceased to exist. In this case is there an order granting a new trial or do we find any special order after final judgment from which an appeal is authorized by the statutes? We believe not.
There are numerous cases where the defendants against whom default judgments were taken, appealed, upon refusal of the trial court to set aside such judgments. In Bussiere's Adm'r. v. Sayman, supra, the plaintiff appealed from the action of the trial court in setting aside her default judgment. At page 799 of 165 S.W. of the opinion the Supreme Court en Banc, said:
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