Harrington v. Harrington
| Decision Date | 03 October 1938 |
| Citation | 121 S.W.2d 291,233 Mo.App. 390 |
| Parties | ADA HARRINGTON, RESPONDENT, v. GUY EARL HARRINGTON, APPELLANT; THOMAS B. BASH, MOVANT, RESPONDENT |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Marion D. Waltner, Judge.
Judgment reversed and cause remanded.
Harry S. Davis and J. John Gillis for appellant.
(1) The court erred in refusing to allow the defendant-appellant his exemption provided by section 1398, Revised Statutes of Missouri, 1929, and in finding that section 2990, Revised Statutes of Missouri, deprived defendant-appellant of all his wages when the judgment of the Missouri court from which the execution in evidence came was a mere money judgment rendered in a suit at law for delinquent installment of alimony due under an alimony judgment rendered by the city court of the City of East St. Louis, St. Clair County, Illinois, and not a judgment for alimony or maintenance rendered by a Missouri court under the provisions of either section 1355, Revised Statutes of Missouri, 1929, or section 2989, Revised Statutes of Missouri, 1929. Secs. 1351, 1352, 1355, 1398, 2989 and 2990, R. S. Mo. 1929; State ex rel. Busby v. Cowan, 107 S.W.2d 805; Texas Co. v. Asphalt Dist. Co., 224 Mo.App. 1192; 1 R. C. L., 958-59; Bisbane v. Dodson, 50 Mo.App. 170; 2 Mo. Law Review, 158; Page v. Page, 189 Mass. 85, 75 N.E. 92; Lynde v. Lynde, 167 N.Y 405, 56 N.E. 979, 181 U.S. 183, 21 S.Ct. 555, 45 L.Ed. 810; Mayer v. Mayer, 154 Mich. 396, 117 N.W. 890; Act No 230, Public Acts (Michigan) 1899; Barber v. Barber, 21 Howard, 582; 2 Bishop, "Marriage, Divorce and Separation," sec. 874; Dow v. Blake, 148 Ill 76; Britain v. Chamberlain, 234 Ill. 249; Barclay v. Barclay, 184 Ill. 375. (2) The court erred in admitting in evidence, over the objection of the defendant-appellant, the certified copy of the decree rendered by the city court of the City of East St. Louis, St. Clair County, Illinois, without the plaintiff-respondent pleading and proving that said court was a court of general jurisdiction with jurisdiction to entertain suits for divorce and to render judgment for alimony and maintenance when such purported decree shows on its face that it was rendered by a court of limited, inferior or special statutory jurisdiction, which will not be presumed but which must be affirmatively shown by the face of the record, or fully and distinctly pleaded and proved. Toler v. Coover, 335 Mo. 113, 71 S.W.2d 1068; Brisbane v. Dodson, supra.
Marvin Minnear and John D. Wendorff for plaintiff and respondent, Ada Harrington.
(1) The judgment entered by the Circuit Court of Jackson County, Missouri, is a judgment for alimony from which no appeal has been nor can now be prosecuted. A judgment for alimony rendered in any State of the United States, the court having jurisdiction, when carried into judgment in another State, will there have the same binding force and effect that it had in the State in which it was originally rendered. Brisbane v. Dodson, 50 Mo.App. 170-174; Barber v. Barber, 21 Howard (62 U.S.), 582, 588, 591; 2 Bishop on Marriage, Divorce and Separation (2 Ed.), sec. 847; Wetmore v. Markoe, 196 U.S. 68-72; 25 S.Ct. 172-173; Lynde v. Lynde, 181 U.S. 183, 186-7; 7 Remington on Bankruptcy, sec. 3554, 11 U.S.C. A., sec. 36; Tootle v. Buckingham, 190 Mo. 183, 195-6, 88 S.W. 619, 622; Siebert v. Siebert, 239 Mo. 1, 30-31, 143 S.W. 458, 472. (2) The court did not err in admitting in evidence the Illinois judgment duly authenticated under the Act of Congress. Western Assurance Co. v. Walden, 238 Mo. 49, 61, 141 S.W. 595, 599; Gould et al. v. Crow, 57 Mo. 200, 205.
Lee D. Seelig and Floyd G. Gibson for respondent, Bash.
(1) "Finding" is a word which imports the ascertainment of a fact in a judicial proceeding, and commonly is applied to the result reached by a judge. Clapp v. Wilder, 176 Mass. 332, 337; Garden Cemetery Asso. v. Baker, 218 Mass. 339, 346; 25 Corpus Juris, page 1133. (2) All persons or officers are of necessity required to pass upon the validity of all acts or proposed statutes under which they are required to act, or to decline to act. When so decided by the highest court of the land all people, including executives and judicial officers, ought, and usually do consider that particular question as settled and binding. Norwood v. Goldsmith, 53 Mo. 84, 87. (3) Courts in other States having similar statutes providing for declaratory judgments as contained in our declaratory judgment sections known as Laws of 1935, pages 218-19-20, sections 1 to 15, inclusive, have construed said sections available to public officers for a determination of their rights under other statutes of their respective States. Norwood v. Goldsmith, 53 So. 84; Robinson v. Moser, 203 Ind. 66; Graham v. England (Tenn.), 288 S.W. 728; Borchard on Declaratory Judgments, page 97. (4) The purpose of this statute is to provide ready and speedy remedy in cases of actual controversy relating to legal rights and duties of the respective parties. Welfare Co. v. Stowell, 22 P.2d 529; Sigal v. Wise, 158 A. 891. (5) In proceedings under declaratory judgment act, where facts must be ascertained to determine legal right, factual issues will be tried. Austin v. Bailey, 163 Mass. 270, 39 N.E. 1022; Glover v. Baker, 76 N.H. 393, 399, 83 A. 916-922; Faulkner v. City of Keene, 155 A. 195. (6) Section 724, R. S. 1929 (Mo. St. Ann., 724, p. 940), provides for two methods of instituting a suit: First, by filing in the office of the clerk of the proper court, a petition setting forth plaintiff's cause of action, and the remedy sought, and by the voluntary appearance of the adverse party; second, by filing such a petition and suing out thereon a writ of summons against the person or of attachment against the property of the defendant. There is no question but that a cause of action can be instituted without any summons being issued, if the defendant makes a voluntary appearance. Davis v. Fleming (Mo. App.), 253 S.W. 798; Bush v. Block & Titus, 193 Mo.App. 704, 187 S.W. 153; Conrad v. McCall, 205 Mo.App. 640, 644, 226 S.W. 265; State ex rel. Ponath v. Muench, supra; Smith v. Kiene, 231 Mo. 230, 231, 132 S.W. 1052, supra; Hill v. Barton, 194 Mo.App. 325, 332, 333, 334, 188 S.W. 1105; Merchants' Savings & Loan Ass'n v. Ancona Realty Company, 78 S.W.2d 470-473.
Ada Harrington will be referred to herein as plaintiff; Guy Earl Harrington as defendant; and Thomas B. Bash, Sheriff of Jackson County, Missouri, will be referred to as movant.
Petition was filed in Circuit Court of Jackson County, Missouri, Independence Division, to recover the sum of $ 3410, alleged to be due for alimony and support under a decree in the city court of East St. Louis, St. Clair county, Illinois. Judgment was rendered in favor of plaintiff for the sum of $ 3110. General execution was issued, directed to the sheriff of Jackson County, Missouri, and the sheriff was instructed to garnish wages due defendant from his employer. Garnishment was duly served. Defendant filed with sheriff his verified application for his exemption, as per section 1398, Revised Statutes of Missouri 1929. Plaintiff then filed with sheriff notice alleging that defendant was not entitled to exemptions because of the provisions of section 2990, Revised Statutes of Missouri 1929, and therein threatened to hold sheriff liable on his bond in event he allowed defendant his exemptions. Motion for finding of facts was then filed by the sheriff. The court found that defendant was not entitled to have 90 per cent of his wages exempt from garnishment. This appeal is from that final order of the court.
Neither plaintiff nor defendant questioned the procedure pursued by the sheriff in the filing of the motion for finding of facts.
The first error urged is stated by defendant as follows:
"The Court erred in refusing to allow the defendant-appellant his exemption provided in section 1398, Revised Statutes of Missouri, 1929, and in finding that section 2990, Revised Statutes of Missouri, deprived defendant-appellant of all his wages when the judgment of the Missouri Court from which the execution in evidence came was a mere money judgment rendered in a suit at law for delinquent installment of alimony due under an alimony judgment rendered by the city court of the City of East St. Louis, St. Clair county, Illinois, and not a judgment for alimony or maintenance rendered by a Missouri Court under the provisions of either section 1355, Revised Statutes of Missouri, 1929, or section 2989, Revised Statutes of Missouri, 1929."
Section 1398, Revised Statutes of Missouri, 1929, provides that the last thirty days' wages due any person who is the head of a family and a resident of Missouri shall be exempt from garnishment except for ten per cent thereof. [Texas Company v. Asphalt Dist. Co., 224 Mo.App. 1192, 33 S.W.2d 1003.] Section 2990, Revised Statutes of Missouri, 1929, provides that no exemption, such as is mentioned in section 1398, supra, shall be allowed in "attachment or execution upon a judgment or order issued to enforce a decree for alimony." Section 1355, Revised Statutes of Missouri, 1929, provides for the allowance and collection of judgments for alimony and maintenance. Section 2989, Revised Statutes of Missouri 1929, has no application here. There is strong reason in support of the view that no exemption shall be granted as against collection of an alimony from a sister State. To grant such exemption is for this State to offer a haven to those who seek sanctuary within our borders for the purpose of defeating the claims of wife and children left in another State. But this court must be guided by the law as the courts of Missouri have declared the same in prior decisions; and...
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Mangold v. Mangold
...is registered." (Italics ours.) In view of the enactment of the above statute, what this court said in the case of Harrington v. Harrington, 233 Mo.App. 390, 121 S.W.2d 291, relied on by defendant herein, has no application in this case involving, as it does, a foreign judgment duly registe......