Hartle v. Hartle

• Decision Date: 09 January 1945
• Docket Number: No. 26689.,26689.
• Citation: 184 S.W.2d 786
• Parties: HARTLE v. HARTLE.
• Court: Missouri Court of Appeals

184 S.W.2d 786

HARTLE v. HARTLE.

No. 26689.

St. Louis Court of Appeals. Missouri.

January 9, 1945.

Appeal from Cape Girardeau Court of Common Pleas; J. Henry Caruthers, Judge.

"Not to be reported in State Reports."

Suit for divorce by Glyn W. Hartle against Gladys Hartle. From an order refusing to set aside a default judgment granting plaintiff a divorce, defendant appeals.

Reversed and remanded with directions.

J. Grant Frye, of Cape Girardeau, for appellant.

R. P. Smith, of Cape Girardeau, for respondent.

SUTTON, Commissioner.

This is a suit for a divorce, wherein defendant appeals from the order of the trial court refusing to set aside a default judgment granting plaintiff a divorce from defendant.

Plaintiff's petition charges indignities and desertion as grounds for a divorce. Process was issued to the sheriff of the City of St. Louis returnable to the February term, 1944, and was duly served by personal delivery to defendant. On February 28th, the first day of the February term, 1944, defendant asked and was granted five days additional time in which to plead. On March 3rd, defendant was granted further time, to March 13th, in which to plead, and the case was set for hearing on March 31st. On March 30th, defendant filed an application for a continuance, which on March 31st was denied. Thereupon, on the same day, the court gave judgment by default. On April 6th, defendant filed her motion to set aside the default judgment, and on April 13th, upon the hearing of the motion, it was ordered that the motion be denied. From this order defendant appeals.

Defendant employed Mr. Gregg W. Keegan, of St. Louis, as her attorney, and he in turn employed Mr. Oscar A. Knehans, of Cape Girardeau, as local counsel. Both defendant and Mr. Keegan resided in St. Louis, 150 miles from Cape Girardeau. On March 24th some depositions taken on behalf of defendant were filed.

The application for a continuance was presented by Mr. Knehans as attorney for defendant. Mr. Keegan was absent. So was the defendant. Immediately after the application was denied by the court, Mr. Knehans in open court withdrew as attorney for defendant. Thereupon, the court heard plaintiff's testimony and gave judgment by default. No answer had been filed, but a motion for temporary alimony and suit money had been filed and was pending and undisposed of when the judgment by default was rendered.

Defendant in her motion to set aside the judgment by default, which was filed, heard, and denied during the judgment term, states the facts relative to the reasons for the default substantially the same as the facts shown upon the hearing of the motion, and then alleges that defendant has a good and meritorious defense to plaintiff's petition, to wit: That plaintiff drank to excess and was possessed of a violent and ungovernable temper, and would brutally beat and abuse defendant; that plaintiff associated with other women, and when he was apprehended in this association and defendant questioned him regarding the same, he publicly administered a brutal beating to her; that he associated with other women openly and publicly while living with her. She further alleges that plaintiff had sexual relations with defendant resulting in the birth of a child prior to the marriage; that upon the marriage he recognized the child to be his own and took the child into his home. She further alleges that none of said facts were before the court at the time the court, upon the testimony of plaintiff alone, and with defendant unrepresented, granted the default judgment.

Plaintiff's petition alleges that no child was born of the marriage, and no mention was made of the child born out of wedlock, and subsequently legitimated by the marriage. The result was, of course, that no provision was made for the custody or support and maintenance of the child.

The facts, as developed, in a rather informal way, at the hearing of the motion to set the default judgment aside, show in substance that Mr. Keegan was engaged in the trial of a cause in St. Louis so that he could not attend court at Cape Girardeau on March 31st. Besides, he was soon to be inducted into the armed forces, and was endeavoring to put his affairs in order for such induction. On March 30th he called the Judge of the Cape Girardeau Court of Common Pleas over long distance telephone from St. Louis and advised the court that it would be impossible for him to be in court on March 31st, and requested the court at the time to set the case down for trial in two weeks, and that defendant was not ready to try the case without the depositions of two witnesses, namely, Miss Helen Quinn and Mrs. Hartle, plaintiff's mother. It appears that Mr. Keegan was at Cape Girardeau several times before the default judgment was rendered in an effort to get the depositions of these witnesses, and they were able by one method or another to keep their testimony from being taken. Miss Quinn was a very close friend of plaintiff. She was served by the sheriff on one occasion with a subpoena issued by the notary taking the depositions, but failed to appear. Defendant did, however, procure the deposition of plaintiff, which was taken March 17th, and Mr. Keegan said facts were developed in that deposition of which he had no previous knowledge, and that he was in not in a position to file an answer for defendant until he got the deposition of Miss Quinn. Mr. Keegan was advised by Mr. Knehans of the extension of the time to March 13th to file an answer, and that the case was set down for trial on March 31st. Mr. Keegan stated that Mr. Knehans had only a limited function in the case. Mr. Keegan talked to the judge twice by long distance, and on one occasion while in Cape Girardeau, explaining that he could not possibly try the case on the merits until he had obtained the depositions of Miss Quinn and the plaintiff's mother, and was advised by the judge to file an application for a continuance. Apparently one of these conversations occurred on March 18th while Mr. Keegan was in Cape Girardeau attempting to take the depositions mentioned. The application for a continuance was prepared by Mr. Keegan and mailed to Mr. Knehans, who filed it on March 30th. Mr. Knehans wired Mr. Keegan that counsel for plaintiff was objecting to the continuance. Mr. Keegan had explained to plaintiff's attorney about the necessity of having the testimony of the two witnesses mentioned. Mr. Keegan advised Mr. Knehans by long distance telephone on March 30th that he would be unable to be in Cape Girardeau to try the case on March 31st, and called the judge and requested a postponement of the trial for two weeks. It appears that on the day the deposition of Miss Quinn was to be taken Dr. Murphy advised Mr. Knehans that she was ill. However, it was shown that she was up and going about at the time the sheriff served her with the subpoena. Later Mr. Keegan tried to procure her deposition by another subpoena, but the sheriff was unable to find her. She resided in or near Cape Girardeau, yet only once was the sheriff able to get service of a subpoena on her. Never afterwards could she be found. A subpoena was issued by the clerk of the court for her appearance at the hearing of the motion to set the default judgment aside. The sheriff was unable to find her. It is obvious that she was hiding from the officer to prevent service of a subpoena upon her, and it might fairly be inferred that in this she had the cooperation of the plaintiff. It was amply shown that defendant had a meritorious defense. It appears that plaintiff was violent and abusive toward defendant throughout the course of their married life, and brutually beat and abused her. He associated frequently with other women. His cruelty to her was such that sh...