Keena v. Keena

• Decision Date: 06 November 1928
• Docket Number: No. 20489.,20489.
• Citation: 10 S.W.2d 344
• Court: Missouri Court of Appeals
• Parties: FLORENCE KEENA, APPELLANT, v. JOHN R. KEENA, JR., RESPONDENT.<SMALL><SUP>*</SUP></SMALL>

10 S.W.2d 344

FLORENCE KEENA, APPELLANT, v. JOHN R. KEENA, JR., RESPONDENT.^*

No. 20489.

St. Louis Court of Appeals, Missouri.

November 6, 1928.

Appeal from the Circuit Court of St. Louis County. — Hon. John W. McElhinney, Judge.

AFFIRMED.

Henry H. Oberschelp for appellant.

Ralph & Baxter for respondent.

Appellant's principal grievance appears to be that the court erred in striking out certain parts of her amended petition, and especially the paragraphs in which she claimed to have pleaded certain Illinois statutes, and that the court consequently erred in excluding her offer of said statutes and certain Illinois court decisions construing the same, offered at the trial. It appears from the record in this case that said portions of appellant's amended petition were stricken out by the court at the regular January term, 1924, of said court, and that the case was later continued to and tried at the succeeding May term, 1924, thereof. As appellant has not preserved, exemplified and assembled in her general final bill of exceptions any term bill of exceptions, preserving said alleged errors, such matters are not properly before this court for review. Bohn v. Lucks, 165 Mo. App. 701; Asphalt Paving Company v. Ullman, 137 Mo. 543; Smith v. Baier, 166 Mo. 392; Klines Cloak and Suit Company v. Morris, 293 Mo. 478.

BENNICK, C.

This is a suit in two counts, the first, to have a decree of divorce, granted by the superior court of Cook county, Illinois, declared invalid; and, the second, for separate maintenance. The finding and judgment of the trial court was for defendant on each count of the petition; and an appeal was allowed plaintiff to the Supreme Court, evidently upon the theory that a constitutional question was involved. That court, however, found that the constitutional question had not been preserved for appellate review; and, holding that the cause was one within our jurisdiction, ordered that it be transferred here. [Keena v. Keena (Mo. Sup.), 3 S.W. (2d) 352.]

The issues will be clarified at the outset if we state that plaintiff and defendant were united in marriage in 1898, in the city of St. Louis, where they maintained their matrimonial domicile until October, 1908, when they mutually agreed upon a separation, and made an equal division of the proceeds of their personal effects. After the separation, defendant remained in the city of St. Louis, for four years, or until 1912, when he became a resident of Chicago, Illinois, and so continued until 1921. On September 30, 1919, he instituted a suit for divorce from plaintiff herein, in the superior court of Cook county, Illinois, of which suit she was not advised, and obtained a decree in February, 1920. Subsequently, he was married to another woman; and, in September, 1921, he returned to Missouri, bringing with him his second wife, and taking up his residence in St. Louis county. In this connection it is pertinent to add that the learned trial judge found that defendant's acquisition of a residence in Chicago was made in good faith, and not for the purpose of obtaining a divorce.

In his petition for divorce, filed in Illinois, it appears that defendant pleaded that his wife had deserted him without any reasonable cause; and, in connection with his suit, he made affidavit that plaintiff had gone out of Illinois, and on due inquiry could not be found, so that process could not be served upon her; that, upon due and diligent inquiry, her place of residence could not be ascertained; and that her last-known place of residence was "1621 Broadway Street," St. Louis, Missouri. Thereafter, a certificate of publication was filed in the cause; and, on October 7, 1919, the clerk of the court sent one of such notices by mail to plaintiff, at "1621 Broadway Street," St. Louis, Missouri, which was undelivered, and was returned unopened. An order of default was thereupon entered; and, after a hearing, the decree of divorce was rendered on February 17, 1920, as has been heretofore disclosed.

It seems to be undisputed that plaintiff had never resided in, nor had gone out of, the State of Illinois, nor had she lived at 1621 Broadway, or 1621 South Broadway, in St. Louis, since her marriage to defendant. The lower court found that defendant had failed to make diligent inquiry as to plaintiff's place of residence, which he could easily have made of his mother or daughter, and that his affidavit and testimony were untrue in these respects, and were likely, and probably were intended, to deceive the court, in order that he might procure a divorce without notice to his wife.

In the first count of her amended petition, seeking to have the Illinois divorce declared invalid, plaintiff alleged, in substance, that defendant had fraudulently left this jurisdiction for the purpose of avoiding his matrimonial obligations; that the averments in his petition, as well as in his affidavit, were each and all false and untrue, as was the testimony offered at the trial; and that the decree of divorce thus obtained was procured by him by his fraud, and was a fraud upon the court, and upon her, the other party thereto. Therewith she attempted to plead the statutes of Illinois applicable to divorce suits, all of which were stricken out by the court, together with certain other allegations, on motion of defendant, as having been improperly pleaded in form and manner.

Her prayer was that the said alleged decree of divorce, rendered by the superior court of Cook county, Illinois, and all the proceedings therein, be declared fraudulent, null, and void, and be vacated, set aside, and for naught held; that she be declared to be still the legal wife of defendant, and entitled to all her marital rights as such; and that the court make an allowance to her for attorney's fees, and for other expenses in her behalf expended.

The second count, praying the court to order and adjudge to her such support and maintenance as should seem just and proper, was drawn in the usual form, and is not largely at issue on this appeal.

The record recites that, after the court had sustained defendant's motion to strike out the alleged objectionable portions of the first count of plaintiff's petition, she duly excepted to the ruling, and preserved her exception by a term bill of exceptions, which was allowed, signed, and filed. No further amendment to the petition was made by her, however; and defendant's answer was thereupon filed, consisting of a general denial, coupled with a plea of laches, save for the admission therein of the fact of his marriage to plaintiff, and the rendition of the decree of divorce in Illinois.

The first point urged by plaintiff for our consideration is that the court erred in striking out those portions of the first count of her amended petition in which she attempted to plead the statutes of Illinois, applicable to the institution and trial of divorce suits in that State. It is obvious that the necessity for reasonable brevity of opinion precludes our stating the situation in the manner that we would otherwise wish, since the first count of the petition alone, together with defendant's motion to strike, cover some twenty-two pages in the typewritten abstract of the record which we have permitted to be filed. Consequently, it must suffice to say that we have examined the petition thoroughly, in the light of the court's ruling, and cannot say that error was committed.

The fundamental rule is that, where, as here, statutes of a sister State are relied on as the basis of a cause of action, they must be pleaded with such distinctness that the court may determine their effect, and the facts which constitute their violation must also be pleaded. [Wentz v. Chicago, B. & Q.R. Co., 259 Mo. 450, 168 S.W. 1166; Gibson v. Chicago G.W. Ry. Co., 225 Mo. 473, 125 S.W. 453; Scott v. Vincennes Bridge Co., 220 Mo. App. 1213, 299 S.W. 145; St. Louis Union Trust Co. v. Universal Glass Co., 220 Mo. App. 1205, 299 S.W. 132.] In other words, the fact that it is foreign statutes which are to be pleaded, will afford no relaxation from the usual rules requiring a plain...