Hemphill by and through Burns v. Hemphill, No. 46547

CourtUnited States State Supreme Court of Missouri
Writing for the CourtPER CURIAM
Citation316 S.W.2d 582
PartiesRennie HEMPHILL, by and through her guardian, Charles F. BURNS, Appellant, v. Rosa Mae HEMPHILL et al., Respondents
Decision Date08 September 1958
Docket NumberNo. 1,No. 46547

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.

Page 583

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

Page 584

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

Page 585

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...

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15 practice notes
  • J.L.H., In Interest of, No. WD
    • United States
    • Missouri Court of Appeals
    • January 11, 1983
    ...interest of the child so must those in our system whose duty it is to make the system work. Our supreme court in Hemphill v. Hemphill, 316 S.W.2d 582 (Mo. banc 1958), said the guardian should use the same if not greater attention and vigilence in the action as he would have for a sui juris ......
  • F. v. F., No. 30361
    • United States
    • Missouri Court of Appeals
    • March 15, 1960
    ...a decree of divorce rendered by a court of competent jurisdiction if that decree was procured by fraud. Hemphill v. Hemphill, Mo., 316 S.W.2d 582; McCarty v. McCarty, Mo., 300 S.W.2d 394; Coleman v. Coleman, Mo.App., 277 S.W.2d 866. But there is a sharp distinction as to the nature of the f......
  • McQuate v. White, No. 50700
    • United States
    • Missouri Supreme Court
    • April 12, 1965
    ...judgment sought and the judgment rendered in this case did.' See also Smith v. Kemp, Mo., 353 S.W.2d 721. In Hemphill v. Hemphill, Mo., 316 S.W.2d 582, action was brought by the guardian of an insane wife, a resident of Oklahoma, for declarations that a decree of divorce obtained by her dec......
  • Daffin v. Daffin, Nos. KCD
    • United States
    • Court of Appeal of Missouri (US)
    • May 1, 1978
    ...litigation that is, where the fraud prevented the suitor from a trial or from the full presentation of his case. Hemphill v. Hemphill, 316 S.W.2d 582, 586(5-7) (Mo.1958); Walther v. Null, 233 Mo. 104, 134 S.W. 993, 995 (1911). The limitation of this remedy to extrinsic fraud does not descri......
  • Request a trial to view additional results
15 cases
  • J.L.H., In Interest of, No. WD
    • United States
    • Missouri Court of Appeals
    • January 11, 1983
    ...interest of the child so must those in our system whose duty it is to make the system work. Our supreme court in Hemphill v. Hemphill, 316 S.W.2d 582 (Mo. banc 1958), said the guardian should use the same if not greater attention and vigilence in the action as he would have for a sui juris ......
  • F. v. F., No. 30361
    • United States
    • Missouri Court of Appeals
    • March 15, 1960
    ...a decree of divorce rendered by a court of competent jurisdiction if that decree was procured by fraud. Hemphill v. Hemphill, Mo., 316 S.W.2d 582; McCarty v. McCarty, Mo., 300 S.W.2d 394; Coleman v. Coleman, Mo.App., 277 S.W.2d 866. But there is a sharp distinction as to the nature of the f......
  • McQuate v. White, No. 50700
    • United States
    • Missouri Supreme Court
    • April 12, 1965
    ...judgment sought and the judgment rendered in this case did.' See also Smith v. Kemp, Mo., 353 S.W.2d 721. In Hemphill v. Hemphill, Mo., 316 S.W.2d 582, action was brought by the guardian of an insane wife, a resident of Oklahoma, for declarations that a decree of divorce obtained by her dec......
  • Daffin v. Daffin, Nos. KCD
    • United States
    • Court of Appeal of Missouri (US)
    • May 1, 1978
    ...litigation that is, where the fraud prevented the suitor from a trial or from the full presentation of his case. Hemphill v. Hemphill, 316 S.W.2d 582, 586(5-7) (Mo.1958); Walther v. Null, 233 Mo. 104, 134 S.W. 993, 995 (1911). The limitation of this remedy to extrinsic fraud does not descri......
  • Request a trial to view additional results

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