McDermott v. Gray
| Decision Date | 03 July 1906 |
| Parties | McDERMOTT et al., Appellants, v. BERTRICE GRAY, alias BERTIE McDERMOTT |
| Court | Missouri Supreme Court |
Appeal from Clark Circuit Court. -- Hon. E. R. McKee, Judge.
Affirmed.
Berkheimer & Dawson for appellants.
The court had no jurisdiction to grant the divorce in favor of the defendant against her husband Alonzo H. Gray, and had no jurisdiction to inquire of its jurisdiction in such case, for the reasons: 1st. The order of publication made by the clerk was not signed or attested by him. This is a judicial act and must be attested by the clerk. Wade on Notice, sec. 1062; Hays v. Lewis, 21 Wis. 667; Charles v Kelley, 120 Mo. 141; 20 Ency. Pl. and Pr., 1138; Paton v. Hill Co., 33 S.W. 383; Steele v Murray, 80 Iowa 336. 2nd. For the reason that the petition filed in the divorce case by defendant asking and praying for a divorce from her husband Alonzo H. Gray is entitled "Bertrice Gray against Alonzo H. Gray" and herein charges: 1st. That she was married to said Alonzo H Gray; that Alonzo H. Gray was guilty of the grievances therein mentioned. 2nd. That she as the wife of said Alonzo H. Gray conducted herself in a dutiful manner. 3rd. That she be divorced from Alonzo H. Gray and take her maiden name of Holiday. 3rd. The order of publication was entitled "Bertrice Gray against Alonzo H. Gray," ordered the publication of a notice to Alonzo H. Gray notifying the said Alonzo H. Gray of the commencement and pendency of said suit, the general nature of the same to be to obtain a divorce from said Alonzo H. Gray, and notifying said Alonzo H. Gray to appear to the said suit of Bertrice Gray against Alonzo H. Gray, etc. 4th. The decree of divorce in favor of defendant against Alonzo H. Gray (relied on in this suit) is founded on the said petition in said cause entitled "Bertrice Gray v. Alonzo H. Gray." The order of publication aforesaid entitled "Bertrice Gray against Alonzo H. Gray" is entitled "Bertrice Gray against A. H. Gray" divorcing Bertrice Gray from A. H. Gray, not Alonzo H. Gray, as stated in the petition and order of publication, and attempts to annul the marriage between Bertrice Gray and A. H. Gray (not Alonzo H. Gray) as in the petition and order of publication. The notice of publication must correspond with the order made by the clerk and must be in harmony as to names. Wade on Notice, sec. 1060; Pomeroy v. Betts, 31 Mo. 419. A. H. Gray does not identify Alonzo H. Gray. Identity of initials does not identify names. Liddon v. Hurdnot, 22 Fla. 442. Initials are not a name. Steidman v. Stremple, 29 Mo.App. 484; Web. Unabridged Dic., Title "Initials." 5th. Service by publication depends upon a strict conformity with the statute authorizing the same; being in derogation of the common law, it is always strictly construed; it must be shown that its provisions have been strictly complied with (this provision runs through all the cases cited.) Wade on Notice (2 Ed.), sec. 1030; Burge v. Burge, 94 Mo.App. 15; Troyer v. Wood, 96 Mo. 491; Skelton v. Sackett, 91 Mo. 357. The Christian and surname of both the plaintiff and defendant should be set forth with accuracy. Turner v. Gregory, 151 Mo. 103; Corrigan v. Schmidt, 126 Mo. 304; Elting v. Gould, 96 Mo. 535; Riffle v. Ozark Lumber Co., 93 Mo. 41; Burge v. Burge, 94 Mo.App. 15; Troyer v. Wood, 96 Mo.App. 481; Choen v. State, 21 Am. St. Rep. 179; Enwold v. Oleson, 39 Neb. 59. The decree in the divorce case of Bertrice Gray against Alonzo H. Gray (shown on the record of the said court as a decree against A. H. Gray) is null and void and the same did not annul the marriage relation existing then between the defendant and said Gray for the reason the defendant in that suit was not notified of the beginning, pendency and the general nature thereof to defend the same. 6th. The notice as published in the newspaper, the "Review," notified A. H. Gray. Vincent v. Means, 184 Mo. 327; Spore v. Land Co., 186 Mo. 656. The fact that the statute has been strictly complied with must be shown, no presumption of jurisdiction being indulged in. Galpin v. Page, 18 Wall. 364; Cofielf v. McCleland, 16 Wall. 331; Rickerson v. Richardson, 26 Cal. 300; Commonwealth v. Blood, 97 Mass. 538; Kelly v. Murdagh, 184 Mo. 377. A notice not according to law is no notice. State v. Huff, 161 Mo. 459. Knowledge is not substituted for notice. Green v. Myers, 98 Mo.App. 438; Tourville v. Railroad, 61 Mo.App. 325; Wilson v. Railroad, 108 Mo. 596; Harness v. Cravens, 126 Mo. 252; Young v. Downey, 150 Mo. 326; Parker v. Burton, 72 S.W. 663; Feurt v. Castor, 174 Mo. 303; Tooker v. Leake, 146 Mo. 430; Vincent v. Means, 184 Mo. 327. The fact that the notice has come to the knowledge of the defendant cannot be shown to supply a deviation in the publication. Wade on Notice (2 Ed.), sec. 1030; Scorpion Sewing Machine Co. v. Marseno, 10 Nev. 370; Likens v. McCormack, 39 Wis. 370. The decree of divorce as it appears on the record recites that the notice of publication was published in the Gazette-Herald, which is not the fact. There was no publication in the Gazette-Herald, which may be shown by other parts and recitals in the record. Thomily v. Prentice, 96 N.W. 728; Harness v. Cravens, 126 Mo. 233.
Charles Hiller, Smoot & Smoot and Whiteside & Yant with W. T. Rutherford for respondent.
(1) The contention of appellant that order of publication was not signed and attested by the clerk is not maintained by the facts in the case. The whole order was spread upon the record proper and the order returned with the publication as both signed and attested by the clerk. The fact that the record was not signed at the end of the order when it appeared upon the record proper would not invalidate the order of publication when the order made and returned was properly certified. Fontaine v. Hudson, 93 Mo. 62; Platte County v. Marshall, 10 Mo. 246; Charley v. Kelley, 120 Mo. 134. This is a collateral attack on judgment, and every presumption that the law gives in favor of the proceedings is indulged in this cause. Charley v. Kelley, 120 Mo. 141. Though the order may be defective, and the mode of publication may not conform to the statute, still it is good against collateral attack. Kane v. McCowan, 55 Mo. 191; Johnson v. Gage, 57 Mo. 160; Freeman v. Thompson, 53 Mo. 183. The judgment in this case recites due and regular publication, and is not subject to collateral attack. Appellants cannot assail the judgment, being strangers to the record. Black on Judgment (1 Ed.), sec. 317; Drexel's Appeal, 6 Pa. St. 272. A judgment for divorce must be stable and cannot be assailed, for the strongest reasons. Black on Judgments, sec. 320; Parrish v. Parrish, 9 Oh. St. 534. It cannot be reviewed under the statute after a lapse of time. R. S. 1899, sec. 2932. (2) An action for divorce is a proceeding in rem, the marriage relation being the res. Ellison v. Martin, 53 Mo. 575; Burge v. Burge, 94 Mo.App. 15; Mosely v. Reily, 126 Mo. 124; Elting v. Gould, 96 Mo. 541. A notice which described the defendant as he described himself in a deed which he has put upon record, even though initials be used in the place of the Christian name, is sufficient. Turner v. Gregory, 151 Mo. 100. (3) All the matters pertaining to said divorce being matters of record, whether the divorce was legal or not, the adjustment of the partition suit, the deeds made by the parties must stand, for the most that could be said of it was that they had made a mistake of law. If a party, with a full knowledge of all the facts, pays money in settlement or otherwise, same cannot be recovered back. 1 Parsons on Contracts (5 Ed.), p. 462; 5 Cush. 115; 39 Mo.App. 268; Scotland Co. v. Ewing, 116 Mo. 137. A settlement can only be abandoned for fraud, error or mistake of fact. Money voluntarily paid under a mistake of law cannot be recovered back. Nelson v. State, 16 Ind. 31; Supervisors v. Briggs, 2 Denio 26. If by reasonable diligence a party could ascertain the facts equity will not furnish a remedy. Story's Equity (10 Ed.), sec. 146. Equity will not relieve against a mistake where the party complaining had within his reach the means of ascertaining the true state of facts, unless he was deceived by the other party. Brown v. Fagan, 71 Mo. 568.
This cause is brought to this court by appeal on the part of the plaintiff from a judgment and decree dismissing the bill of plaintiffs, which sought to set aside certain deeds executed by appellant Lucy Turner, conveying certain lands to the respondent, for possession of the same and for rents and profits.
To fully appreciate the nature and character of this cause of action it is well to indicate the substance of the issues as indicated by the pleadings.
The amended petition upon which the case was tried alleges that one Robert L. McDermott died at the county of Clark intestate during the month of September, 1901, leaving as his heirs at law the plaintiffs, his sister, mother and brother.
2nd. That said McDermott at his death was the owner of ten thousand dollars worth of personal property.
3rd. That he at the time was the owner of the following real estate in said county, to-wit: The southwest quarter of section 29, and the northwest quarter of section 32, all in township 65, range 7.
4th. That before the death of said McDermott, by a pretended marriage to the defendant, under the name and style of Bertie Holliday, he married the defendant, and that said pretended marriage, occurred on the day of October, 1896.
5th. That defendant by virtue of said marriage claimed to be the widow of the decedent McDermott, and having elected under the statute to take as an heir was entitled to one-half of all his estate.
6th. That after the death of said McDermott, plaintiff Louisa A McDermott (mother...
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