Johnson v. First National Bank in Wichita, Kansas, 5015.

• Decision Date: 22 June 1955
• Docket Number: No. 5015.,5015.
• Citation: 223 F.2d 31
• Parties: Beatrice JOHNSON, Guardian and Curatrix of Marium Elizabeth McDowell, a person of unsound mind, succeeded by The City National Bank and Trust Company of Kansas City, Kansas City, Missouri, Guardian and Curator, Appellant, v. The FIRST NATIONAL BANK IN WICHITA, KANSAS, Administrator of the Estate of Thomas Scott McDowell, deceased; and Elizabeth Penny McDowell, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

223 F.2d 31 (1955)

Beatrice JOHNSON, Guardian and Curatrix of Marium Elizabeth McDowell, a person of unsound mind, succeeded by The City National Bank and Trust Company of Kansas City, Kansas City, Missouri, Guardian and Curator, Appellant, v. The FIRST NATIONAL BANK IN WICHITA, KANSAS, Administrator of the Estate of Thomas Scott McDowell, deceased; and Elizabeth Penny McDowell, Appellee.

No. 5015.

United States Court of Appeals Tenth Circuit.

May 18, 1955.

Rehearing Denied June 22, 1955.

COPYRIGHT MATERIAL OMITTED

Lucian Lane and William F. Woodruff, Kansas City, Mo. (Woodruff & Lane, Kansas City, Mo., on the brief), for appellants.

Wayne Coulson, Wichita, Kan. (Howard T. Fleeson, Homer V. Gooing, Paul R. Kitch, Wichita, Everett Minner and Harry Waite, Dodge City, Kan., on the brief), for appellees.

Before PHILLIPS, Chief Judge, and MURRAH and PICKETT, Circuit Judges.

MURRAH, Circuit Judge.

Appellant Guardian¹ instituted this action to vacate a decree of divorce obtained by Thomas Scott McDowell from his insane wife, Marium Elizabeth McDowell in the District Court of Ford County, Kansas, on the grounds that the decree is void for lack of jurisdiction and defects in the proceedings and voidable for fraud in its procurement. She seeks a judgment ultimately decreeing her ward to be the widow and sole surviving heir of McDowell.

Basing its jurisdiction upon diversity of citizenship and requisite amount in controversy, both of which are present, the trial court treated the suit as one in equity to annul the judgment for lack of jurisdiction and to deprive the successful party of the fruits of a judgment fraudulently procured. Bradburn v. McIntosh, 10 Cir., 159 F.2d 925; Hanson v. Hoffman, 10 Cir., 113 F.2d 780; Moffett v. Robbins, 10 Cir., 81 F.2d 431; United States v. Mashunkashey, 10 Cir., 72 F.2d 847; Annotation 160 A.L.R. 1349, 1359; Freeman on Judgments, 5th Ed., Vol. 3, Secs. 1182 and 1469. The court denied relief, however, holding that the divorce and the subject matter, and that the proceedings were valid and regular in every court had jurisdiction over the parties respect.

Appellant Guardian first attacks the jurisdiction of the divorce court contending that "residence" as used in the Kansas statute authorizing service by publication means "domicile" and that McDowell falsely and fraudulently stated in his affidavit for publication that his wife resided in Kansas City, Missouri, when he knew that she was mentally incompetent to abandon her marital domicile in Kansas.

At the outset it is important to keep in mind that in an independent proceedings of this kind the court will not go beyond the face of the challenged jurisdictional instruments to inquire into the verity of the facts they purport to show. Our inquiry is limited to defects appearing upon the face of the jurisdictional instruments, and more specifically whether in our case the requirements of the applicable Kansas statutes with respect to constructive service by publication have been met. If the instruments are found to be in compliance with the statutory requirements, the judgment is invulnerable to attack on jurisdictional grounds, and our inquiry on that issue is at an end. Larimer v. Knoyle, 43 Kan. 388, 23 P. 487; Davis v. Vinson Land Co., 76 Kan. 27, 90 P. 766; Miller v. Miller, 89 Kan. 151, 130 P. 681; Blair v. Blair, 96 Kan. 757, 153 P. 544; Gooden v. Lewis, 101 Kan. 482, 167 P. 1133; Marler v. Stewart Farm Mortgage Co., 111 Kan. 488, 207 P. 823; Potts v. West, 124 Kan. 815, 262 P. 569; Elfert v. Elfert, 132 Kan. 218, 294 P. 921; Morris v. Robbins, 83 Kan. 335, 111 P. 470. And this is so, whether the proceedings are collateral or direct. 1 Freeman on Judgments, Sec. 309. Equitable relief can be "granted only upon fraud extrinsic to the matters tried and determined by the other court and which caused the court to render a wrong judgment, such as the successful party through fraud or deception preventing the unsuccessful from presenting his case, or from attending the trial, or where his attorney was induced to betray his client's interest, or other chicanery of that kind. * * *" Moffett v. Robbins, supra 81 F.2d 435; United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93; United States v. Mashunkashey, supra; Horton v. Stegmyer, 8 Cir., 175 F. 756; Blair v. Blair, supra; Miller v. Miller, supra; Annotation 160 A.L.R. 1349; 3 Freeman on Judgments, sec. 1233. Even in the presence of extrinsic fraud, federal equity jurisdiction does not act upon the judgment assailed. It will act rather upon the successful parties to deprive them of the fruits of their fraudulent acts which operated to procure the judgment. Moffett v. Robbins, supra; United States v. Mashunkashey, supra; Annotation 160 A.L.R. 1349; 3 Freeman on Judgments, sec. 1178.

On the question of jurisdiction, Kan.G.S.1949 60-2525 provides for service by publication in actions to obtain a divorce where the defendant resides out of the state; and 60-2526 provides for service by publication upon the filing of an affidavit stating the non-residence of the defendant and that the plaintiff is unable to procure actual service on the defendant within the state. For purposes of service by publication in Kansas "residence" and "domicile" are synonymous. Gleason v. Gleason, 159 Kan. 448, 155 P.2d 465; Arnette v. Arnette, 162 Kan. 677, 178 P.2d 1019. Kan. G.S.1949 60-2527 provides that the publication must be made in an authorized newspaper for three consecutive weeks in the county where the petition is filed, and must contain pertinent information concerning the parties, the fact of the suit, and the necessity of answering within a stated period. 60-2528 provides that the publication is deemed complete when it is made in the manner and for the time prescribed in 60-2527 and that service shall be proved by affidavit of the printer and no default judgment shall be entered on such service until proof thereof is made and approved by the court, and filed. 60-1504 provides that when service by publication is proper, a copy of the petition with a copy of the publication notice attached thereto shall within three days after the first publication be enclosed in an envelope addressed to the defendant at his or her place of residence, postage paid, and deposited in the nearest post office, unless the plaintiff shall make and file an affidavit that such residence is unknown to the plaintiff, and cannot be ascertained by any means within the control of the plaintiff. 60-408 authorizes service by publication upon an insane person, as upon other defendants, provided that if there is a natural or legally appointed guardian for the insane person defendant, service shall also be made in the same manner upon such guardian. If there is no legally appointed guardian for such insane person defendant, or if such guardian fail to appear and answer in the action within the time fixed by the summons or publication notice, the court shall appoint a guardian ad litem for such insane person, and such guardian ad litem shall file proper pleadings which shall include a general denial of the plaintiff's petition, as shall put the plaintiff to proof of his cause of action.

The affidavit for publication in our case stated that the action was one for divorce based upon the ground of abandonment for more than one year; that the defendant is absent from the State of Kansas, residing at 3516 Summit Street, Kansas City, Missouri; that plaintiff is unable with diligence to procure personal or actual service of summons upon the defendant within the State of Kansas. The notice was published and proof thereof made as required by statute. The attorney for the plaintiff made due proof of mailing in compliance with 60-1504.

There was no legally appointed guardian of the insane defendant at the time of service by publication and no service by publication attempted upon a natural guardian, if existent, as required by 60-408. See also Mark v. Keightley, 133 Kan. 101, 298 P. 783; Suter Bros. v....