Lieber v. Lieber

• Citation: 143 S.W. 458,239 Mo. 1
• Parties: MARGARET LIEBER v. ELIZABETH LIEBER, Appellant
• Decision Date: 23 December 1911
• Court: United States State Supreme Court of Missouri

143 S.W. 458

239 Mo. 1

MARGARET LIEBER v. ELIZABETH LIEBER, Appellant

Supreme Court of Missouri

December 23, 1911

Appeal from Hickory Circuit Court. -- Hon. Argus Cox, Judge.

Reversed.

Henry P. Lay, J. W. Montgomery and W. D. Harryman for appellant.

(1) The plaintiff was not a competent witness as to any facts relating to the Illinois decree of divorce, the other party to the cause of action being dead. R. S. 1909, sec. 6354; Bishop v. Investment Co., 129 S.W. 668; Patton v. Fox, 169 Mo. 97. (2) Judgments of foreign courts are conclusive in Missouri as to all questions involved therein. 13 Am. and Eng. Ency. Law (2 Ed.), 977; Wilson v Jackson, 10 Mo. 329; Barney v. White, 46 Mo 137; Harbin v. Chiles, 20 Mo. 314; Randolph v Keiler, 21 Mo. 557; Blackburn v. Jackson, 26 Mo. 308; Napton v. Leaton, 71 Mo. 358. (3) And this has been especially held as to decrees of divorce. Anthony v. Rice, 110 Mo. 223; Gould v. Crow, 57 Mo. 200. (4) A judgment, fair on its face, cannot be attacked in a collateral proceeding. A collateral attack is an attempt to impeach a judgment in a proceeding not instituted for the express purpose of annulling such judgment. 17 Am. and Eng. Ency. Law (2 Ed.), 848; Lovitt v. Russell, 138 Mo. 474; Truesdale v. McCormick, 126 Mo. 39; Wise v. Loring, 54 Mo.App. 258. (5) While it is true that in a direct proceeding (which this is not) a court of equity will grant relief against a judgment procured by fraud, yet the fraud to justify such relief, must be shown by the clearest evidence, and must be in the very procurement of the judgment and must be a fraud upon the court as well as upon the other party. 16 Am. and Eng. Ency. Law (2 Ed.), 380; Hamilton v. McLean, 139 Mo. 678; Hamilton v. McLean, 169 Mo. 51; Murphy v. De France, 101 Mo. 151; Frears v. Riley, 148 Mo. 49; Railroad v. Mirrielees, 182 Mo. 126; Irvine v. Leyh, 124 Mo. 361; Payne v. O'Shea, 84 Mo. 129; Crim v. Crim, 162 Mo. 544; Bates v. Hamilton, 144 Mo. 1; Moody v. Peyton, 135 Mo. 482. It is not sufficient that the original cause of action is vitiated by fraud, or that the judgment was the result of perjured testimony. Cases above cited. The finding of the Illinois court that Alexander Lieber was a resident of that State is final, and cannot be inquired into in this proceeding. 13 Am. and Eng. Ency. Law (2 Ed.), 995, n. 1; Frears v. Riley, 148 Mo. 49. (6) As Alexander Lieber acquired his homestead prior to the amendment of 1895, and the plaintiff had filed no claim of homestead, his conveyance of his homestead was valid, even though she had been his wife. His right to convey was a vested right, and was not affected by the amendment of 1895. Gladney v. Sydnor, 172 Mo. 318. (7) It appearing from plaintiff's petition and proof that the decree of divorce was rendered in 1868; that she had actual knowledge of the decree at least fifteen years before the death of Alexander Lieber and actually lived on adjoining farms for some years before his death, but made no complaint, there is no equity in her petition and it should be dismissed. Buffington v. Carty, 195 Mo. 499. And these facts appearing from plaintiff's own petition and evidence it was not necessary for defendant to plead laches. Quinlan v. Keiser, 66 Mo. 603.

Rechow & Pufahl, W. L. Pitts, F. M. Wilson and W. A. Dollarhide for respondent.

(1) The plaintiff was a competent witness. White v. Maxey, 64 Mo. 560; Spradling v. Conway, 51 Mo. 54; Garvin's Admr. v. Williams, 50 Mo. 206; Hoyt v. Davis, 30 Mo.App. 309; Green v. Green, 126 Mo. 25. (2) Oral testimony is admissible to impeach a judgment alleged to have been obtained by fraud in its procurement on jurisdictional facts. Rosencranz v. Dry Goods Co., 175 Mo. 538; Mullins v. Reiger, 169 Mo. 532; Wonderly v. Lafayette Co., 150 Mo. 635; Mayberry v. McClurg, 51 Mo. 556; Link v. Link, 48 Mo.App. 345; Ramsey v. Hicks, 53 Mo.App. 190; Fitzpatrick v. Stevens, 114 Mo.App. 497; Hinkle v. Lovelace, 204 Mo. 208; Howard v. Scott, 225 Mo. 713; Thompson v. Whitman, 85 U.S. 457; Streitwolf v. Streitwolf, 181 U.S. 179; Bell v. Bell, 181 U.S. 175; Wood v. Wood, 12 L.R.A. (N.S.) 891; Lawrence v. Nelson, 113 Iowa 277; Johnson v. Coleman, 23 Wis. 452; Bomsta v. Johnson, 38 Minn. 230; Rawlins v. Rawlins, 18 Fla. 345; McCraney v. McCraney, 5 Iowa 232; Brown v. Grove, 116 Ind. 84; Succession of Benton, 59 L.R.A. 183; State v. Westmoreland, 8 L.R.A. (N.S.) 842; Marx v. Force, 51 Mo. 69. (3) The deed from Alexander Leiber having been made without consideration and to defraud this plaintiff was and is void as to her. Rice v. Waddell, 116 Mo. 99. Even if it was not, still this plaintiff had dower in the premises and ejectment lies for its recovery when she is deforced. (4) When a charge of fraud is made against a person and that person does not testify, this is a very strong circumstance of the truth of the allegation. Mabary v. McClury, 74 Mo. 575; Eck v. Hatcher, 58 Mo. 238; Leeper v. Bates, 85 Mo. 228; Bent v. Lewis, 88 Mo. 470; Nelson v. Hall, 104 Mo.App. 473; Baldwin v. Whitcomb, 71 Mo. 651. (5) As the petition for divorce charges the desertion just eight days before the filing of the same, to-wit, on the 20th of July, 1868, the same failed to state facts sufficient to give the Illinois court jurisdiction. (6) The Statute of Limitations was not pleaded, nor are any laches pleaded. Tramwell v. Adam, 2 Mo. 155; Benoist v. Darby, 12 Mo. 176; Orr v. Rove, 101 Mo. 387; Stoddard v. Malom, 115 Mo. 508; Bell v. Clark, 30 Mo.App. 224; Maddox v. Duncan, 62 Mo.App. 474; Bavy v. Levee Dist., 110 Mo.App. 599; Stevenson v. Smith, 156 Mo. 447; Vogul v. Kennedy, 127 Mo.App. 228. In certain cases it may be raised by special demurrer. State ex rel. v. Spencer, 79 Mo. 314; Maddox v. Duncan, 62 Mo.App. 464. It cannot be raised for the first time in the Supreme Court. Wyman v. Cary, 48 Mo. 346; Price v. Haeburly, 25 Mo.App. 206. (8) When there is fraud perpetrated in the very acts to give the court an apparent jurisdiction in a case, this is held by all courts to comply with the rule that requires the evidence to show that fraud was perpetrated in the procurement of the judgment. See authorities cited under point two.

WOODSON J. Valliant, C. J., and Kennish, J., dissent in separate opinions; Graves, J., concurs in the result.

OPINION

In Banc

WOODSON, J.

The plaintiff instituted this suit in the circuit court of Hickory county, against the defendant, to set aside and have cancelled a certain deed made and delivered February 7, 1905, by one Alexander Lieber, now deceased, to the defendant, Elizabeth Lieber, conveying to her certain real estate, fully described in the petition, and located in said county, for the alleged reason as stated in the petition, that said land was the homestead of said Alexander Lieber, and that she, the plaintiff, did not join in the conveyance; she also alleging that she, at the date of the conveyance, was his lawful wife, and at the institution of the suit she was his widow.

The petition also charges that a decree of divorce granted by the circuit court of Mercer county, Illinois, in the year 1868, in favor of said Alexander Lieber against her, was procured by fraud, and that thereafter, on October 25, 1868, he was married to Elizabeth Lieber, the defendant.

The petition, in addition to asking to have the deed of conveyance set aside and cancelled, incidentally seeks to have the decree of divorce granted Alexander Lieber against the plaintiff here, the defendant then, also set aside in so far as it affects the real estate in controversy.

The answer put in issue all allegations of the petition, and the parties went to trial without questioning the sufficiency of the pleadings.

The decree was for plaintiff as prayed, and after moving unsuccessfully for a new trial, the defendant appealed the cause to this court.

The following facts seem to be undisputed, viz.:

During the year 1857, the plaintiff, Margaret Lieber, and Alexander Lieber were lawfully married in the city of St. Joseph, Missouri, and lived together as husband and wife, in this State, until the latter part of the year 1865 or the first of 1866; that they then went to Quincy, Illinois, where they separated; that on October 9, 1868, Alexander Lieber secured a decree of divorce in the circuit court of Mercer county, Illinois, against Margaret Lieber, the present plaintiff, on the ground of desertion, based upon publication, regularly had, against her as a non-resident; that thereafter, on October 25, 1868, Alexander Lieber married the defendant Elizabeth Lieber; that in 1884 he acquired the land in controversy, and continued to occupy it as a homestead up to the time of his death; that prior to his death, in 1905, he, for a good, as distinguished from a valuable, consideration, conveyed the land to the defendant, but he and the defendant continued to live on eighty acres of it until his death on February 13, 1907; that the plaintiff knew, for a period of fifteen years prior to bringing this suit, that Alexander Lieber had obtained the decree of divorce from her, and for two years or more prior to his death she lived within a mile of the residence of said Alexander Lieber and the defendant, but took no action whatever to avoid said decree of divorce, or to assert any claim against the said Alexander Lieber, until seven days after his death, on which date she brought this suit.

Counsel for plaintiff offered and the court admitted over the objections of the defendant, the testimony of the plaintiff to the effect that she was and had been for many years a resident of the State of Illinois prior to the time the order of publication was issued and published, notifying her of the bringing of said divorce suit, on the ground of non-residence.

Counsel for plaintiff also offered, and the...