Howey v. Howey

• Decision Date: 06 April 1922
• Docket Number: No. 21476.,21476.
• Citation: 240 S.W. 450
• Parties: HOWEY v. HOWEY.
• Court: Missouri Supreme Court

240 S.W. 450

HOWEY v. HOWEY.

No. 21476.

Supreme Court of Missouri, in Banc.

April 6, 1922.

Motion for Rehearing Overruled April 29, 1922.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

Action by Ella Howey against William J. Howey for divorce and alimony. Judgment for defendant, and plaintiff appeals. Affirmed.

Prince, Hamilton, Harris & Beery, L. A. Laughlin, and Clay C. Rogers, all of Kansas City, for appellant.

Guthrie, Conrad & Durham and Hale Houts, all of Kansas City, for respondent.

GRAVES, J.

With the views which we have of this case a short statement will suffice.

Plaintiff sued defendant in the Jackson county circuit court for divorce and $400,009 alimony. In her petition she avers that they were married on October 30, 1897, at Atlanta, Ga., and that defendant without cause deserted her at Kansas City, Mo., September 17, 1913, and since said time has lived with another woman.

The answer (1) admitted the marriage, and denied each and every other allegation of the petition; (2) pleaded as res adjudicate a decree of the circuit court of Florida (Tenth judicial circuit) in and for Polk county, Fla., wherein defendant was granted a divorce from plaintiff on the ground of adultery In the said state of Florida; (3) pleaded that plaintiff had committed adultery with different parties, naming them; (4) a further plea of a settlement contract between them as to property rights, after the separation, and when they were living apart, and (5) condonation of his acts, after knowledge. Prayer was for a dismissal of plaintiff's bill. The answer also pleaded the divers statutes of Florida applicable to divorce proceedings in that state, where service was to be had by publication. To the answer and as exhibits attached were exemplified copies of the Florida divorce decree and the written contract for the settling of property rights.

The reply charges that the decree rendered in the Florida circuit court was void and ineffective (1) because said court had no jurisdiction, and (2) because said decree was fraudulently procured by defendant and an imposition upon said court through the fraud of defendant.

The pleaded statutes of Florida were duly proved, and introduced in evidence. A full exemplification of the proceedings in the case of William J. Howey v. Ella Howey, in the Florida court, duly authenticated under the federal statute, was introduced in evidence. But of these in the opinion. The circuit court of Jackson county, after hearing a mass of testimony, including the above-mentioned records and statutes, dismissed Mrs. Howey's petition, and entered judgment for defendant. This will suffice for a short statement of the case, under the conclusions we have reached.

I. We are of the opinion that the decree of the Florida circuit court determines this case in accordance with the judgment entered nisi. This decree, however, we shall discuss later. At this point we have another matter in view. In a recent brief filed in the court in banc, appellant raises for the first time the point that there is no proof that the circuit court of Polk county had jurisdiction of divorce cases. The decree of such court is pleaded in the answer, and in this answer it is stated:

"That on the 21st day of January, 1914, defendant instituted against plaintiff an action for divorce in the circuit court of the Tenth judicial circuit of Florida, in and for Polk county, in the state of Florida, in chancery sitting, the same being a court of general jurisdiction and having jurisdiction of the subject-matter of said action."

To this answer was a reply which raised the issues. There is first a general denial in this reply, but thereafter throughout its length (and it is very long) it proceeds upon the theory that such court was one of general jurisdiction, and one which did have jurisdiction of divorce proceedings. Thus in paragraph 2 of the reply it is averred that said court had no jurisdiction "over this plaintiff in said cause, in this, that this plaintiff had no notice or knowledge of the pendency of said cause," etc. Again in paragraph 3 it is averred:

"That said court had no jurisdiction of the subject-matter of said cause in this, that the alleged petition * * * fails to allege and does not charge in any manner or form that the plaintiff had resided in the state of Florida two years next preceding the filing of said petition."

Paragraph 4 says:

"For the reason that said court had no jurisdiction of the subject-matter in said cause of action in this, that the alleged petition alleged to have been filed in said circuit court of said Polk county, Fla., at Bertow, fails to allege and does not in any manner or form charge that the alleged offense of adultery by the defendant therein (plaintiff herein), was committed in the state of Florida."

Paragraph 5 says:

"For the reason that said court had no jurisdiction of the person of this plaintiff nor of the subject-matter of said cause in this, that the alleged petition alleged to have been filed in said circuit court of said Polk county, Fla., at Bartow, fails to allege, and does not charge in any manner or form that the plaintiff therein had resided in the state of Florida two years next preceding the filing of said petition, and for the further reason that the alleged petition alleged to have been filed in said circuit court of said Polk county, Fla., at Bartow, fails to allege, and does not in any manner or form charge, that the alleged offense of adultery by the defendant therein (plaintiff herein) was committed in the state of Florida or any other place."

In this paragraph a purported copy of the petition is set out in hæc verba. So throughout this whole reply, the general jurisdiction of the court is practically conceded, but it is charged that such general jurisdiction was not properly invoked for the defects in the pleadings and process, specifically named. The reply in many paragraphs thereof, in effect, concedes the general jurisdiction, but pleads given facts in avoidance of the general jurisdiction. This situation renders the first plea by way of general denial nugatory. State ex inf. v. Delmar Jockey Club, 200 Mo. loc. cit. 55 et seq., 92 S. W. 185, 98 S. W. 539.

The reply amounts to a confession of the general jurisdiction of the court over the subject-matter of divorce, but undertakes to and does plead matters in an attempt to avoid this general jurisdiction. The point made is not well taken under the status of the pleadings.

But in addition to this the record shows that plaintiff introduced "in evidence decisions of the Florida Supreme Court containing pronouncements as follows." Here follows a long extract from an opinion of the Florida Supreme Court in the case of Warren v. Warren, 73 Fla. 764, 75 South. 35, L. R. A. 1917E, 490, in which divers' other cases (divorce and maintenance cases) are cited and quoted from by the writer of that opinion. An examination of these cases show the jurisdiction of such cases to be in the circuit courts of that state. So that if evidence of such general jurisdiction was required, the plaintiff furnished it by and through the judicial decisions of the Supreme Court, to which all such cases came from the several circuit courts.

II. Going to the pleadings in the divorce proceeding in the case of Wm. J. Howey v. Ella Howey, in the circuit court of Polk county in the Tenth judicial district of Florida, we have two authenticated copies in evidence; one by the defendant, and the other by the plaintiff. In the one, the act of adultery is charged to have been in the city of Tampa in the state of Florida, and in the other the act of adultery is charged, but the place of its commission is not charged. This, however, is explained by the evidence. The petition was drawn by Mr. Wilson, of the firm of Wilson and Boswell. Judge Boswell, who was formerly judge of the circuit, was the person who advised with Howey, and gave the facts to Wilson to draw the petition. Wilson drew it, and placed it upon Judge Boswell's desk for inspection. When the judge returned, he discovered that the place of the adultery was not stated, and called Mr. Wilson's attention thereto. Thereupon Wilson retyped the second page of the petition, and later filed the corrected petition, which was in form as introduced by defendant, in his duly authenticated record of the proceedings. It seems that plaintiff or some one had called for a certified copy of the petition, and the clerk or some deputy in the office, being unable to find the original files, went to Wilson and Boswell for a copy, and evidently got a copy of the original draft, which was never filed. It appears that the original files were afterward found, and the copy introduced by the defendant is a duly authenticated copy of this original. The evidence leaves no doubt upon this matter. In this petition it is averred that plaintiff, Wm. J. Howey, "is a citizen of the state of Florida, residing in Polk county." It is further averred:

"That on the 3d day of December, 1912, in the city of Tampa, Fla., and at various other times and places since said marriage, the said Ella Howey * * * committed adultery and had carnal knowledge with one Altman."

There were other general charges of adultery, but this is the specific one.

The statute of Florida (Gen. St. 1906, § 1926) reads:

"In order to obtain a divorce the complainant must have resided two years in the state of Florida before the filing of the bill, except where the defendant has been guilty of the act of adultery in this state, then any citizen of this state may obtain divorce at any time, and the two years' residence shall not be required of such complainant."

Under this statute the Florida Supreme Court rules that in the ordinary case the plaintiff must allege and prove two years' residence in the state. Warren v. Warren, 73 Fla. 777, 75 South. loc. cit. 40, L. R. A. 1917E, 490. But on the same page it is further said:

"This...