Kunzi v. Hickman

• Decision Date: 31 May 1912
• Citation: 147 S.W. 1002
• Parties: KUNZI et al. v. HICKMAN.
• Court: Missouri Supreme Court

147 S.W. 1002

KUNZI et al. v. HICKMAN.

Supreme Court of Missouri. Division No. 1.

May 31, 1912.

1. PROCESS (§ 77)—CONSTRUCTIVE SERVICE.

Where constructive service of process is resorted to, strict compliance with the statute governing the same must be observed.

2. DIVORCE (§ 79)—SERVICE—PUBLICATION.

Rev. St. 1909, § 1770, provides that in suits for divorce, if plaintiff shall allege in her petition or shall file an affidavit stating that the defendant is a nonresident, or has absconded, the court or the clerk in vacation shall make an order notifying defendant of the suit, stating briefly its object, and requiring him to appear on a day named therein. Defendant filed suit for divorce against her husband; the petition containing no allegation of his nonresidence, or any other ground for service by publication. Thereafter she filed an affidavit of nonresidence, which failed to state in what court the case was pending, or the object of the petition. The publication was based on the petition alone, and recited that defendant had deserted plaintiff, and had absented himself from his usual place of abode in the state, so that ordinary process could not be served on him, without alleging that he was a nonresident. The notice actually published recited that "defendant had deserted this plaintiff from his usual place of abode in this state, so that the ordinary process of law could not be served on him," while the order recited "that defendant has deserted this plaintiff, and the defendant has absented himself from his usual place of abode in this state, so that ordinary process cannot be served upon him." Held, that such service was not a compliance with the statute, and was insufficient to confer jurisdiction.

3. JUDGMENT (§ 497)—RECITALS OF JURISDICTION—EFFECT.

While courts will presume in a collateral proceeding that a court of general jurisdiction properly acquired jurisdiction over the parties, yet the presumption will yield to record evidence to the contrary; and recitals of jurisdiction or of the service of process contained in the judgment will be overthrown by other recitals in the record of equal dignity and importing equal verity, showing that the former recitals are untrue.

4. JUDGMENT (§ 497)—RECITALS OF SERVICE.

When service is recited in the judgment, the recital refers to the service shown by other portions of the record.

Appeal from Circuit Court, Warren County; J. D. Barnett, Judge.

Suit by Henry Kunzi and others against Bettie Hickman. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

This is a suit to quiet title and ejectment for the possession of certain real estate situate in Warren county. A trial was had on the first count before the court, which resulted in a finding and judgment for the plaintiffs; but upon motion for a new trial the judgment was set aside and a new trial granted. From the order granting the new trial, the plaintiffs duly appealed to this court.

The facts are few and undisputed, and are as follows:

The plaintiffs, Henry Kunzi, Pauline Krousbein, Adele Kickman, Annie Buscher, Charles Kunzi, and Bernhard Kunzi, were the children and are the heirs at law of William Kunzi, deceased, who died, intestate, October 16, 1906, seised and possessed of the real estate described in the petition. The defendant, Bettie Hickman, alias Bettie Kunzi, is the alleged widow of William Kunzi, deceased, and the alleged stepmother of the plaintiffs.

The question for determination involves the defendant's right to dower and homestead in the lands in controversy, and that depends upon the validity of the decree of divorce granted at the April term, 1904, of the circuit court of Warren county, divorcing defendant, Bettie Hickman, from Jesse Hickman, her former husband. The plaintiffs contend that said decree of divorce was a nullity, and that the alleged marriage of the defendant to William Kunzi was bigamous and void. The converse of this proposition is contended for by the defendant. From this, it is seen that the only and controlling question presented for determination is whether the defendant was legally divorced from her former husband, Jesse Hickman, to whom, it is admitted, she was lawfully married on September 2, 1900, in Callaway county.

The facts regarding the divorce proceedings, as disclosed by the record, are as follows:

On October 13, 1903, defendant, under the name of Bettie Hickman, instituted an action for a divorce in the circuit court for Warren county against one Jesse Hickman. The petition contained the statutory affidavit required in divorce cases; but neither the petition nor the affidavit stated any reasons for the issuance of an order of publication. On the date that said petition was filed, to wit, on October 13, 1903, a summons was issued by Robert N. Chiles, clerk of the circuit court for Warren county, Mo., directed to the sheriff of Warren county, commanding him to summon Jesse Hickman to appear on the fourth Monday in October, 1903, to answer the petition of Bettie Hickman, etc. No service was had by any sheriff on said summons, but on the back thereof appears the following sheriff's return: "Executed the within writ in the county of Callaway and state of Missouri on the 16th day of October, 1903. Jesse Hickman not found in my county. James E. Moore, sheriff Callaway County, Missouri. P. S. His folks think he is in Iowa or North Dakota."

The judge's docket of the Warren county circuit court at the October term, 1903, fourth day, October term, under head of return cases, contains the following entry, and no other, concerning the case of Hickman v. Hickman: "Judge's docket of the Warren county circuit court at the October term, 1903. Fourth day, October term. Return cases. Attorneys for plaintiff, C. E. Peers; attorneys for the defendant (no one marked); names of parties in action, Bettie Hickman, plaintiff, versus Jesse Hickman, defendant. Cause of action, divorce. Services had or order made at last term, non est return on summons."

No orders of any kind were made at the October term, 1903, in said cause. No alias writ was ordered for the defendant; nor was any showing made to authorize the issuance of an order of publication. No appearance was made by any one for the defendant; nor did he appear.

On February 19, 1904, there was filed by and with Robert N. Chiles, clerk, an affidavit for an order of publication reading as follows, to wit: "State of Missouri, County of Warren. Now at this day comes Bettie Hickman, plaintiff in the matter of Bettie Hickman v. Jesse Hickman, and in aid of her petition for divorce on her oath says that the said Jesse Hickman is, to the best of her knowledge and belief, a nonresident of the state of Missouri, and that the ordinary process of law cannot be served upon him, the said Jesse Hickman, and prays that an order of publication be issued against him, the said Jesse, notifying him of the beginning of this suit, the object and general nature thereof, by the clerk in vacation. [Signed] Bettie Hickman. Sworn to before me this 19th day of February, 1904, at my office in Warrenton, Mo. F. A. Orderheide. [Seal.] My commission expires February 24, 1907. Notary Public."

Upon this alleged affidavit for an order of publication, the clerk spread upon his record the following order of publication, as appears by circuit court record book K, at page 496: "In the Circuit Court for Warren County, Missouri, Spring Term, 1904. Bettie Hickman, Plaintiff, v. Jesse Hickman, Defendant. Divorce. Now here, on this 13th day of October, 1903, comes the plaintiff by her attorney before the undersigned circuit clerk and files her petition verified by affidavit, alleging, among other things, that defendant had deserted this plaintiff, and the defendant has absented himself from his usual place of abode in the state, so that the ordinary process of law cannot be served upon him. It is therefore ordered by the clerk in vacation that said defendant be notified by publication of the commencement of this suit, the object and general nature of which is to obtain a judgment or decree of the circuit court, annulling the bonds of matrimony contracted between plaintiff and defendant as in said petition alleged, and that, unless he be and appear at the next term of the circuit court of Warren county, Missouri, to be begun and held in the city of Warrenton, in said county and state, on the third Monday in April, 1904, and on or before the first day of said term, answer to, demur, or otherwise plead to plaintiff's petition, the allegations therein contained will be taken as confessed, and judgment will be rendered against him in accordance with the prayer of said petition. It is further ordered that a copy hereof be published in the Warrenton Herald, a weekly newspaper printed and published in Warren county, Missouri, the last insertion to be at least fifteen days before the next term of said court. Robert N. Chiles, Clerk."

If proof and return of the publication of the order of publication was ever made by the publisher of the Warrenton Herald, it had disappeared from the files when this cause was tried, and no record of it could be found. But plaintiffs introduced in evidence a copy of the Warrenton Herald, in which said order of publication was published; and a perusal of it will show that it is not a true and correct copy of the order of publication which was spread upon the record, and that there are variances between the order of publication as spread upon the record and as published. The order of publication, as published in the Warrenton Herald, reads as follows:

"Order of Publication. In the Circuit Court for Warren County, Mo., Spring Term, 1904. Bettie Hickman, Plaintiff, v. Jesse Hickman, Defendant. Divorce. Now here, on this the 13th day of October, 1903, comes the plaintiff by her attorney before the undersigned circuit clerk and files her petition verified by affidavit, alleging, among other things, that defendant...