In re Scott v. Scott

Decision Date14 June 1943
Docket NumberNo. 20252.,20252.
Citation173 S.W.2d 115
PartiesIN RE ESTATE OF THOMAS TILLMAN SCOTT, DECEASED, THOMAS R. SCOTT, EARL DELBERT SCOTT, BESSIE HELEN HESTER, AND WILLA DAVIS SCOTT, APPELLANTS, v. LOLA L. SCOTT, ADMINISTRATOR, RESPONDENT.
CourtMissouri Court of Appeals

Appeal from Jackson Circuit Court. Hon. Thos. J. Seehorn, Judge.

AFFIRMED.

Ira B. Burns and Dwight Roberts for appellants.

(1) The court in holding that the deceased, Thomas Tillman Scott, was legally divorced from Willa Davis Scott, was legally married to Lola L. Scott, and in entering judgment against the petitioners for the following reasons: (a) Because the petition for divorce in the case of T.T. Scott v. Willa D. Scott did not state a cause of action or grounds upon which a divorce could be given. O'Hern v. O'Hern, 206 Mo. App. 651, 228 S.W. 533; Bowers v. Bowers, 19 Mo. 351; Marolf v. Marolf, 191 Mo. App. 239, 177 S.W. 819; Mahn v. Mahn, 80 Mo. App. 337; Kempf v. Kempf, 34 Mo. 211; Lynch v. Lynch, 87 Mo. App. 32; Sec. 1514, R.S. Mo. 1929; Wilson v. Darrow, 223 Mo. 520, 122 S.W. 1077, 1080; McDonnell et al. v. Hawkeye Life Ins. Co., 64 S.W. (2d) 748, 752; Cooper v. Gunter, 215 Mo. 558, 114 S.W. 943; Freeland v. Freeland, 19 Mo. 345, 355; White v. McFarland, 148 Mo. App. 338, 128 S.W. 23, 27; Brier v. State Exch. Bank of Macon, 225 Mo. 673, 125 S.W. 469; Badger Lumber Co. v. Muehlebach, 109 Mo. App. 646, 83 S.W. 546; Loehr v. Murphy, 45 Mo. App. 519; Schnitzer v. Excelsior Powder Mfg. Co., 160 S.W. 282; Cherry v. Chorn, 221 Mo. App. 1207, 229 S.W. 598; Andrews v. Lynch, 27 Mo. 167, 169-170; Falls v. Daily, 74 Mo. 74; Davis v. Davis, 60 Mo. App. 545, 554-555; Orchard v. National Exchange Bank, 121 Mo. App. 338, 98 S.W. 824, 827-28; McCrosky v. Burnham, 282 S.W. 158, 160; Jones v. Alf Bennett Lbr. Co., 175 Mo. App. 26, 157 S.W. 864, 867; Guhman v. Grothe, 346 Mo. 427, 142 S.W. (2d) 1, 2. (b) Because no lawful process was ever issued, served, or published against the petitioner herein, Willa D. Scott. Dent et al. v. Investors' Security Ass'n et al., 400 Mo. 552, 254 S.W. 1080; Flynn v. Tate, 286 Mo. 454, 228 S.W. 1070; Priest et al. v. Capitain et al., 236 Mo. 446, 139 S.W. 204, 209; Cox v. Cox, 115 S.W. (2d) 104; Williams v. Sands, 251 Mo. 147, 158 S.W. 47; Pickel v. Pickel, 176 Mo. App. 673, 159 S.W. 774; Hinkle v. Lovelace, 204 Mo. 208, 102 S.W. 1015; Wilson v. Darrow, 223 Mo. 520, 122 S.W. 1080; Guhman v. Grothe, 346 Mo. 427, 142 S.W. (2d) 2; Kunzi v. Hickman, 243 Mo. 103, 147 S.W. 1002; State ex rel. Finch v. Duncan, 195 Mo. App. 541, 193 S.W. 950; Frazier v. Radford, 225 Mo. App. 1104, 23 S.W. (2d) 639; Sec. 891, R.S. Mo. 1939; Bobb v. Woodward, 42 Mo. 482, 489; Coonley v. Coonley, 237 S.W. 198, 199; McDermott v. Gray, 198 Mo. 266, 95 S.W. 436; Burge v. Burge, 94 Mo. App. 15, 67 S.W. 703; Sec. 916, R.S. Mo. 1929. (c) Because no proceedings were ever instituted by Thomas Tillman Scott, deceased, to secure a divorce from the marriage of Thomas Tillman Scott to petitioner, Willa D. Scott, contracted between them on July 22, 1903. Cooper v. Gunter, 215 Mo. 558, 114 S.W. 943; Hinkle v. Lovelace, 204 Mo. 208, 102 S.W. 1020; Raney v. Home Ins. Co., 213 Mo. App. 1, 246 S.W. 57; Dickey v. Dickey, 132 S.W. (2d) 1026, 1032. (d) Because any attempted marriage between Thomas Tillman Scott and Lola L. Scott, the respondent, is null and void for the reason that Thomas Tillman Scott was the husband of the petitioner, Willa D. Scott. Kunzi et al. v. Hickman, 243 Mo. 103, 147 S.W. 1002. (2) The court erred in admitting the testimony of Lola L. Scott, for the following reasons: (a) The testimony concerning the payments made by deceased, Thomas Tillman Scott, to Willa D. Scott and his children and concerning the relationship of witness and Thos. T. Scott was incompetent and immaterial for any purpose. Burge v. Burge, 94 Mo. App. 15, 67 S.W. 706. (b) Lola L. Scott was disqualified as a witness by the death of Thomas Tillman Scott. Sec. 1887, R.S. Mo. 1939; Wren v. Sturgeon, 184 S.W. 1036; Crow v. Crow, 124 Mo. App. 120, 100 S.W. 1123; 70 C.J., page 374, par. 491. (3) The probate court where this proceeding originated had authority to pass on the validity of the divorce and remove Lola L. Scott as administratrix. Sec. 43, R.S. Mo. 1939; McCabe v. Lewis, 76 Mo. 296; Davis v. Roberts, 206 Mo. App. 125, 226 S.W. 662; Secs. 1 and 7, R.S. Mo. 1939; In re Helm's Estate, 136 S.W. (2d) 421; Harms v. Pohlmann, 297 S.W. 138; Burge v. Burge, 94 Mo. App. 15, 57 S.W. 703.

O.H. Swearingen for respondent.

(1) There is no right of appeal from an order of the probate court refusing to revoke letters of administration. State v. Anderson, 112 S.W. (2d) 857, and cases cited at page 859; State ex rel. v. Fowler, 18 S.W. 968. (2) This suit is a collateral attack upon a judgment rendered in Division 4 of the Circuit Court of Jackson County, Missouri. Ray v. Ray, 330 Mo. 530, 50 S.W. (2d) 142; Hansford v. Hansford, 34 Mo. App. 262; Farrell v. Kingshighway Bridge Co., 117 S.W. (2d) 693; Howey v. Howey, 240 S.W. 456; Kennedy v. Kennedy, 223 Mo. App. 1121, 23 S.W. (2d) 1089; McDermott v. Gray, 95 S.W. 431, 198 Mo. 266. (3) The circuit court has jurisdiction in all cases of divorce and alimony or maintenance; and all such cases shall be tried by the court, and the like process and proceedings shall be had in such causes as are had in other civil actions. R.S. Mo. 1939, sec. 1515; R.S. 1919, sec. 1802; Ray v. Ray, 330 Mo. 530, 50 S.W. (2d) 142; Hays v. Hays, 324 Mo. 810, 24 S.W. (2d) 997; Trigg v. Trigg, 41 S.W. (2d) 583. (4) T.T. Scott, the deceased, was legally divorced from Willa Davis Scott, and the court correctly ruled that the divorce decree issued by the Circuit Court of Jackson County, Missouri, Division No. 4, was a good and lawful decree and not subject to collateral attack. Hansford v. Hansford, 34 Mo. App. 262; Kern v. Kern, 141 S.W. (2d) 164; Ijames v. Ijames, 119 S.W. (2d) 73; Reger v. Reger, 293 S.W. 414; Kennedy v. Kennedy, 223 Mo. App. 1121, 23 S.W. (2d) 1089. (a) The petition of T.T. Scott stated a cause of action. Kern v. Kern, 141 S.W. (2d) 164; O'Hern v. O'Hern, 206 Mo. App. 651, 228 S.W. 533; Ijames v. Ijames, 119 S.W. (2d) 73; Nolker v. Nolker, 257 S.W. 798; Marolf v. Marolf, 177 S.W. 819. (b) The filing of plaintiff's petition for divorce gave the court jurisdiction of the cause. R.S. Mo. 1919, sec. 1802. (c) The court found that it had jurisdiction of the person of Willa Davis Scott, the defendant, obtained by lawful process. That question is not subject to collateral attack. R.S. Mo. 1939, sec. 891; R.S. Mo. 1919, sec. 1196; Kennedy v. Kennedy, 223 Mo. App. 1121, 23 S.W. (2d) 1089; Hansford v. Hansford, 34 Mo. App. 262; Warren v. Manwarring, 173 Mo. 21, 73 S.W. 447. (d) The court found that Willa Davis Scott had been lawfully summoned by publication, due and legal proof of which was on file. There cannot on principle be a difference between the finding of jurisdictional facts, and the finding of other facts essential to a degree. Hansford v. Hansford, 34 Mo. App. 262, 271; Reger v. Reger, 293 S.W. 414; Warren v. Manwarring, 173 Mo. 21, 73 S.W. 447; Kennedy v. Kennedy, 223 Mo. App. 1121, 23 S.W. (2d) 1089; McDermott v. Gray, 198 Mo. 266, 95 S.W. 431. (e) Willa D. Scott is the correct name of the defendant in that case. (f) The bonds of matrimony contracted between T.T. Scott and Willa D. Scott "were dissolved and for naught held and plaintiff forever freed from the obligation thereof." (g) T.T. Scott and Lola L. Scott were lawfully married at Olathe, Kansas, November 17, 1927. Dft's. ex. I. (5) The judgment in the case of T.T. Scott v. Willa D. Scott by Division 4 of the Circuit Court of Jackson County, Missouri, is not subject to collateral attack. (a) A judgment in a suit wherein the court has jurisdiction is not subject to collateral attack. Lieber v. Lieber, 239 Mo. 1, 143 S.W. 458; Farrell v. Kingshighway Bridge Co., 117 S.W. (2d) 693. (b) If court has cognizance of controversy as it appears from pleadings in case, any judgment or order the court enters, if responsive to the issues made up in the pleadings, is valid until set aside or reversed on appeal, regardless of how erroneous or irregular the judgment or order may in fact have been. Dickey v. Dickey, 132 S.W. (2d) 1026; State ex rel. v. Trimble, 306 Mo. 657, 269 S.W. 617; Reger v. Reger, 316 Mo. 1310, 293 S.W. 414. (c) The recitation in the order of publication, "an affidavit" is a mere irregularity and does not vitiate the order. Such recital even if not true would not make the order void. Warren v. Manwarring, 173 Mo. 21, 73 S.W. 447; Jasper County v. Wadlow, 82 Mo. 172; McDermott v. Gray, 198 Mo. 266, 95 S.W. 431. (d) Where a judgment is offered in evidence to prove prior adjudication of the question involved, it is the duty of the court to construe the judgment and to interpret its meaning same as any other written instrument offered in evidence. Raney v. Home Ins. Co., 213 Mo. App. 1, 246 S.W. 57. (e) A divorce decree duly granted to a bona fide resident upon statutory service is valid. Coffey v. Coffey, 71 S.W. (2d) 141. (f) Whether a complaint does or does not state a cause of action, is, as far as it concerns a question of jurisdiction of no importance, for if the complaint states a case belonging to a general class over which the authority of the court extends, there is jurisdiction, and the court has power to decide whether the pleading is good or bad. In all such cases, collateral attack, on the judgment rendered, is altogether inadmissible. Sidwell v. Kaster, 289 Mo. 188, 232 S.W. 1005. (g) Willa Davis Scott will not be allowed to attack the judgment in the case of T.T. Scott against Willa Davis Scott, since T.T. Scott remarried in 1927 and is now passed away. State ex rel. v. Hogan, 306 Mo. 580, 267 S.W. 619; Bennett v. Terry, 299 S.W. 147; Reger v. Reger, 316 Mo. 131, 293 S.W. 414; Lieber v. Lieber, 239 Mo. 1, 143 S.W. 458. (6) The disqualification of Lola L. Scott to be a...

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