Hemphill by and through Burns v. Hemphill

• Decision Date: 08 September 1958
• Docket Number: No. 1,No. 46547,46547,1
• Parties: Rennie HEMPHILL, by and through her guardian, Charles F. BURNS, Appellant, v. Rosa Mae HEMPHILL et al., Respondents
• Court: Missouri Supreme Court

Page 582

316 S.W.2d 582

Rennie HEMPHILL, by and through her guardian, Charles F.

BURNS, Appellant, v. Rosa Mae HEMPHILL et al., Respondents.

No. 46547.

Supreme Court of Missouri, Division No. 1.

Sept. 8, 1958.

Motion for Rehearing or to Transfer to Court En Banc Denied

Oct. 13, 1958.

Richart & Titus, Joplin, for appellant.

Emerson Foulke, Joplin, Clarence Craig, Joplin, for Rosa Mae Hemphill and Rosa Mae Hemphill, Administratrix.

Seiler, Blanchard & Van Fleet, Joplin, for I. J. Albright and First State Bank of Joplin.

Max Patten, Joplin, for Merlyn C. Perkins and Jennett Perkins.

Ben F. Putman, Joplin, for John L. Gernandt and Florence Gernandt.

Stanley P. Clay, Joplin, for Henry Polk Lowenstein, Jr., Trustee, and Prudential Ins. Co.

HOLMAN, Commissioner.

Plaintiff, Rennie Hemphill, is an insane person residing in the State of Oklahoma. She instituted this action by and through Charles F. Burns who is alleged to have been appointed as plaintiff's guardian on January 27, 1956, by the county court of Ottawa County, Oklahoma, and to have duly qualified as such. In the first count of her petition she sought to have the court declare null and void a Missouri divorce decree obtained by her husband, Roy Hemphill, in 1942, and that she be declared to be his lawful widow. The relief sought in the second count is for an accounting and other relief relating to the personal assets in the estate of Roy Hemphill, now deceased, and a decree establishing the interests of plaintiff and defendants in the real estate owned by said decedent at the time of his death. Plaintiff has appealed from the judgment of the court dismissing her petition upon the motions of various defendants which alleged as grounds therefor (1) 'that plaintiff, a foreign guardian, has not the legal capacity to prosecute this action,' and (2) because the petition fails to state a claim upon which the relief prayed for can be granted. Since the petition sought an adjudication as to the interests of the parties in certain real estate, we have appellate jurisdiction. Article V, Section 3, Constitution of Missouri, 1945, V.A.M.S.

In regard to the first point specified in the motions to dismiss we have the view that under the provisions of Section 475.335, Laws of Mo.1955, p. 385, Vol. 26A V.A.M.S., which became effective January 1, 1956, a nonresident guardian of a nonresident ward may maintain an action of this nature in the courts of this state. While that section seems to be limited in its application to actions for the recovery of property of the ward, we think it apparent that such is the ultimate purpose of the instant action and that the court of the petition wherein plaintiff seeks to set aside the divorce decree is merely preliminary to the establishment of her rights in the property of decedent as his widow.

The real issue to be determined upon this appeal is whether plaintiff's petition states a claim upon which the relief prayed for can be granted. In that connection we note that 'It is well settled that a motion to dismiss a petition admits, for the purpose of the motion, the truth of all facts well pleaded therein and any inferences fairly deducible from the facts stated, and we construe the petition favorably to the plaintiff giving him the benefit of every reasonable and fair intendment in view of the facts alleged. * * * The question presented is whether the facts stated invoke the application of principles of substantive law which would entitled plaintiff to the relief he seeks.' Jacobs v. Jacobs, Mo.Sup., 272 S.W.2d 185, 188. However, a motion to dismiss does not admit conclusions of law or the conclusions of the pleader on the facts. Therrien v. Mercantile-Commerce Bank & Trust Co., 360 Mo. 149, 227 S.W.2d 708.

In the first count of the petition it is alleged that plaintiff and Roy Hemphill were married on December 25, 1916, and thereafter lived together as husband and wife in the State of Oklahoma; that on January 8, 1926, the county court of Ottawa County, Oklahoma, made an order declaring plaintiff to be insane and ordered that she be committed to the Eastern Oklahoma Hospital In Venita, Oklahoma; that plaintiff is now and has continuously since said date been kept as a public patient in said hospital.

It is alleged that on December 16, 1941, Roy Hemphill filed a petition for divorce against plaintiff here in in the circuit court of Jasper County, Missouri; that after appointment of a guardian ad litem, a purported decree of divorce was entered therein on January 10, 1942, but that said decree was declared to be void because of insufficient service. The defendants concede that the decree in the foregoing case was void and hence we will make no further reference to that cause.

The petition further alleges that on March 4, 1942, Roy Hemphill filed a petition for divorce in the circuit court of Jasper County, Missouri, against this plaintiff; that on April 13, 1942, the court appointed a guardian ad litem for defendant therein (plaintiff here) and said guardian ad litem filed an answer to said petition on April 14; on April 16, 1942, the court entered a decree granting said Roy Hemphill a divorce from plaintiff herein, which said decree is alleged to be null and void for reasons specified in the petition. It is alleged that the averments in the petition for divorce were that Roy Hemphill and plaintiff resided together as husband and wife until January 1922; that said husband faithfully demeaned himself and discharged his marital duties but that plaintiff herein offered indignities which rendered his condition in life intolerable.

In paragraph 8 of the instant petition plaintiff alleges that the divorce decree was null and void for one or more of the following reasons:

(a) That the allegations in the petition and the statements in the affidavit thereto and testimony of the witnesses in said cause were false and untrue.

(b) That the allegation in said petition that Roy Hemphill and plaintiff lived together as husband and wife until January 1922 was false as said parties, in truth and fact, lived together until the time plaintiff was committed to the hospital in January 1926.

(c) That the petition failed to allege, and the testimony failed to prove, that plaintiff herein was not insane at the time she allegedly committed the indignities averred.

(d) That if plaintiff did the things alleged as purported indignities in the petition for divorce said acts were done and performed while plaintiff was insane and at a time when said Hemphill knew she was insane; that failure of said Hemphill to plead and testify to said fact was a fraud upon the court and said conduct constituted a false and fraudulent attempt to make insanity a ground for divorce in this state.

(e) It is further alleged that the guardian ad litem appointed by the court to represent the present plaintiff in said divorce action failed to communicate with plaintiff or with any of her relatives or friends, and failed 'to make any investigation whatsoever concerning the facts or circumstances in the matters either before preparing and filing the purported answer or before permitting the cause to be tried and go to judgment,' and that said guardian ad litem failed to notify plaintiff herein, or any of her relatives or friends, as to the time when said cause was to be taken up, heard and tried by the court, and that said guardian ad litem, in his purported capacity as such, was 'not in truth and in fact acting for and in the interest of this insane plaintiff but was acting solely in accommodation of the said Roy Hemphill and his counsel in said action'; that by reason of the foregoing, 'plaintiff was unlawfully and fraudulently deprived of due process and certain remedy for her rights in said cause, and said proceeding constituted a fraud upon this plaintiff.'

(f) It is further alleged that the purported service of process upon plaintiff herein was made contrary to law and the court acquired no jurisdiction over her person

(g) That said Roy Hemphill failed to allege and prove that if the plaintiff herein did commit the alleged indignities, said actions on her part were fully condoned by the continued cohabitation of said parties as husband and wife from the date of their marriage until the date plaintiff was incarcerated in the hospital, and that said omissions constituted a fraud upon the court and upon this plaintiff.

(h) It was further stated that the divorce petition alleged, and testimony in said case purported to prove, that Roy Hemphill was the innocent and injured party and was of good moral character, when in truth and in fact he had lived for many years in Jasper County, Missouri, in a state of open and notorious adultery,...