Kennedy v. Kennedy

• Decision Date: 07 January 1930
• Citation: 23 S.W.2d 1089,223 Mo.App. 1116
• Parties: KATHERINE KENNEDY, APPELLANT, v. JAMES KENNEDY, RESPONDENT. [*]
• Court: Missouri Court of Appeals

23 S.W.2d 1089

223 Mo.App. 1116

KATHERINE KENNEDY, APPELLANT, v. JAMES KENNEDY, RESPONDENT. ^[*]

Court of Appeals of Missouri, St. Louis

January 7, 1930

Appeal from the Circuit Court of the City of St. Louis.--Hon. Claude O. Pearcy, Judge.

AFFIRMED.

Judgment affirmed.

Chilton Atkinson and Frank C. O'Malley for appellant.

(1) Every petition for divorce in this State must contain the averment that the plaintiff has resided within the State one whole year next before the filing of such petition, or else that the offense or injury complained of was committed within the State or while one or both of the parties resided within this state. Rev. Stat. of Mo. of 1919, sec. 1804. (2) In the absence of such allegation the petition is fatally defective and will not support a judgment; the trial court lacking jurisdiction of the subject-matter. Cheatham v Cheatham, 10 Mo. 296; Collins v. Collins, 53 Mo.App. 470; Sharpe v. Sharpe, 134 Mo.App. 278; Ammerman v. Ammerman, 188 Mo.App. 50. (3) The parties to a divorce suit cannot confer upon the court jurisdiction of the subject-matter, either by waiver or by consent. There is no common-law jurisdiction, and such matters are controlled entirely in this State by statute. Sharpe v. Sharpe, 134 Mo.App. 281, 282; Keller v. St. Louis, 152 Mo. 599. (4) A void judgment is even subject to collateral attack, and it is never necessary to appeal from such a decree. Hickle v. Lovelace, 204 Mo. 226. (5) Where a decree of divorce shows on the face of the record that it is void, delay or inaction of the defeated party will not invest it with any power or vitality, for it is a nullity under all circumstances and for all time. Martin v. Martin, 173 Ala. 106.

James T. Blair, Jr., and Sam C. Blair for respondent.

(1) There is no ground of jurisdiction here unless a constitutional question is involved. The only mention of any constitution is in the latter part of the petition. The allegations of the petition state no basis for any construction of either the State or Federal Constitution. They require merely a construction of the petition in the divorce case and of a statute whose validity is not questioned in this case. Sec. 12, Art. VI, Const. of Missouri; Sec. 5, Amendment of 1884 to Constitution of Missouri; Wolf v. Hartford Fire Ins. Co., 304 Mo 459, 263 S.W. 846, et seq.; Hulett v. Ry. Co., 145 Mo. 36, 37; State v. Tatman, 278 S.W. 714, 715; Village v. McElroy, 298 S.W. 761; Hardin v Carthage, 171 Mo. 443, et seq. (2) Even had the petition raised a constitutional question, there was no effort to preserve it in the motion for new trial. For that reason, also, there is no constitutional question in this case. Keena v. Keena, 3 S.W.2d 352; City v. Libby, 278 S.W. 372, 373. (3) And had the pleadings raised such a question and the motion for new trial preserved it, yet it is no longer in the case since no error is assigned thereon and no mention made of it in appellant's points and authorities, brief or argument. Village v. McElroy, 298 S.W. 761, 762; Moore v. Rys., 256 Mo. 166; Butts v. Railroad, 248 Mo. 60. (4) This appellant was duly served personally in the divorce case. She did not appeal and did not sue out a writ of error within sixty days. Under the statute this ends the matter. There is no fraud in the procurement of the judgment set up in this case. Secs. 1811, 1812, R. S. 1919. (5) The certiorari case this appellant began in the Supreme Court passed on this matter in all substance. It was so pleaded and proved in this case. State ex rel. v. Hogan, 267 S.W. 619. (6) The language of the divorce petition is adequate to meet the requirements of the statute relied upon. Sec. 1804, R. S. 1804; State ex rel. v. Hogan, 267 S.W. 621. (7) All assignments not briefed by appellant are abandoned. This applies to the rulings on evidence. Denkman v. Fixture Co., 289 S.W. 594; Compton v. Const. Co., 315 Mo. 1089.

HAID, P. J. Becker and Nipper, JJ., concur.

OPINION

HAID, P. J.

This is an appeal from a decree dismissing the petition of appellant. The suit was filed March 13, 1925, to set aside a judgment or decree of divorce obtained by James Kennedy against Katherine Kennedy on April 20, 1922, on the ground that such decree was void because of the want of a sufficient allegation as to plaintiff's residence prior to the filing of his petition. The allegation attacked is that:

"Plaintiff further says that he is now and has been for a space of one whole year before filing this petition a resident of the State of Missouri, and now resides in St. Louis, Mo."

There is no allegation in the present petition that the plaintiff in the divorce case was not a resident of the State for one whole year next before the filing of the petition.

An answer to the petition in this case was filed which pleaded the certiorari proceeding in the Supreme Court (267 S.W. 619) and set up the laches of the plaintiff in the present proceeding.

The record discloses that the defendant in the divorce case was served with summons but that she failed to plead and did not appear at the trial after a default had been granted against her. On April 24, 1922, she filed a motion to set aside the decree of divorce setting out her reasons for her failure to plead and alleging she had a meritorious defense and desired to make defense and file cross-bill but did not attack the sufficiency of the allegations of the divorce petition. This motion was denied but she took no appeal from the decree.

There was testimony introduced as to when one of plaintiff's present attorneys was employed, in 1923; that said attorney was unable to locate Mr. Kennedy to serve process on him and because of that fact he applied to this court on June 23, 1923, for a writ of certiorari, which was denied; that then he made application to the Supreme Court for a like writ, which was denied about January, 1925, and then the present proceeding was instituted. There were other facts shown concerning Mrs. Kennedy's efforts to have the decree of divorce set aside, but they are unnecessary to a consideration of the question before us. Many of those facts are set out in the opinion of the Supreme Court in the certiorari proceeding in that court (267 S.W. 619).

The contentions of the plaintiff (appellant) may be summed up in the statement that every petition for divorce in this State must contain the averment that the plaintiff has resided within the State one whole year next before the filing of such petition, or else that the offense or injury complained of was committed within the State or while one or both of the parties resided within this State; that in the absence of such allegation the trial court is lacking in jurisdiction because the petition is fatally defective and will not support a judgment.

In a divorce case, we are bound to observe the provisions of Sections 1811 and 1812, Revised Statutes Missouri, 1919, that no final judgment therein shall be reversed, annulled or modified unless an appeal shall have been granted during the term at which the decree was rendered, or a writ of error shall have been issued within sixty days after the order was made or judgment rendered, and that no petition for review of any judgment for divorce shall be allowed, any law or statute to the contrary notwithstanding. An exception to the rule laid down in those sections of the statute is as to a case of the character involved in the decision of Dorrance v. Dorrance, 242 Mo. 625, 148 S.W. 94. Assuming that an action to set aside a void judgment is likewise an exception, we will proceed to determine whether the judgment attacked here is void.

It is true that in many of the decisions in this State it is held that to support a judgment or decree of divorce a complete jurisdictional averment, substantially in compliance with the statute, must appear in the petition, but in a majority, at least, of those cases it was unnecessary to determine the question as to whether a judgment is void because of a defective averment. It will be found that they were direct proceedings by appeal or writ of error from the decree sought to be reviewed and, as it seems to us, could not have been intended to hold that simply because of an inaccurate statement of a jurisdictional averment in the petition, notwithstanding the fact that the evidence produced might have supplied the necessary facts required to be found to justify the granting of the decree, the decree rendered therein would nevertheless be void.

The appellant relies upon the following four cases: Cheatham v. Cheatham, 10 Mo. 299, in which the court stated that one or the other of the facts required by our present Section 1804, Revised Statutes Missouri, 1919, is made essential to give jurisdiction to the court, but it did not have before it the question here involved. This court in the case of Amerland v. Amerland, 188 Mo.App. 50, 56-59, 173 S.W. 104, held that an entire absence of an allegation from an amended petition was fatal and reversed the decree of the circuit court for that reason. Each of these cases was upon appeal taken from the decrees complained of and in neither of them was there before the court the question of whether such judgment was merely voidable or void, while the case of Collins v. Collins, 53 Mo.App. 470, held that it was not necessary that the very words of the statute should be stated in a petition for divorce but that it was sufficient that it contained an allegation to cover the intent and meaning of the statute, and the petition in that case failing in this respect, the decree of divorce was reversed and the cause remanded. The case of Sharpe v. Sharpe, 134 Mo.App. 278, 114 S.W. 584, merely held that in an action by the wife for maintenance, the husband could not file a counterclaim for divorce and that...