Howell v. Howell

• Decision Date: 08 June 1912
• Docket Number: 17,672
• Citation: 87 Kan. 389,124 P. 168
• Parties: MYRTLE HOWELL v. PERRY HOWELL, Applee, J. H. HERIFF, INTERVENOR, Appellant
• Court: Kansas Supreme Court

124 P. 168

87 Kan. 389

MYRTLE HOWELL v. PERRY HOWELL, Applee, J. H. HERIFF, INTERVENOR, Appellant

No. 17,672

Supreme Court of Kansas

June 8, 1912

Decided January, 1912.

Appeal from Neosho district court.

Proceeding dismissed.

J. H. Herriff, for the appellant.

OPINION

Per Curiam:

In this action Myrtle Howell asked for alimony from her husband. He answered and asked for a divorce on various grounds, including adultery. A divorce was granted because of the fault of the wife. In the cross-petition J. H. Herriff was named and on the trial witnesses spoke of his relations with the plaintiff. After the judgment Herriff filed a petition in the district court stating that an injustice had been done to him and his reputation, and asking to intervene and be permitted to show that the court had no jurisdiction to try the case and that its judgment was a nullity because, among other things, the plaintiff had not resided in the state a year preceding the commencement of the action. The court refused the application and the petitioner undertakes to appeal from the ruling. He had no right to intervene in the district court and has no standing to take an appeal. The English practice of allowing a third person, charged with having illicit relations with a party to a divorce action, to intervene in order to protect his reputation and character, has not been authorized or adopted in this state. It does appear that a wrong interpretation was placed on sections 664 and 667 of the civil code. Under these sections a party asking a divorce must, in any event, have been an actual resident, in good faith, of the state one year preceding the filing of his petition. The Howells, it seems, had not resided in Kansas the required time, and hence the court had no jurisdiction of the divorce proceeding. But, although the court lacked the power to adjudicate as to the divorce, the petitioner, not being a party to the action, had no standing to challenge the validity of the proceeding in the district court nor is he entitled to a review of the ruling of that court on his petition.

The proceeding is dismissed.