McLaughlin v. McLaughlin
| Decision Date | 31 May 1910 |
| Citation | 129 S.W. 21,228 Mo. 635 |
| Parties | JOHN L. McLAUGHLIN, Appellant, v. MARY M. McLAUGHLIN |
| Court | Missouri Supreme Court |
Appeal from Caldwell Circuit Court. -- Hon. Francis H. Trimble Judge.
Reversed and remanded.
J. M Davis & Son for appellant.
(1) Alimony is an allowance payable out of the husband's estate for the wife's support, payable periodically except where the statutes authorize an award in gross. It is not a portion of the husband's estate to be assigned to her in fee simple. It never covers the estate itself, and cannot be decreed in specific property, except by statutory authorization or by agreement. 1 Bailey on Jur., sec. 271, p. 282; 2 Am. and Eng. Ency. Law (2 Ed.), p. 129; 2 Bishop on Mar. Div. and Sep., secs. 835 and 1117; Calme v. Calme, 25 N.J.Eq. 548; Almond v. Almond, 4 Randolph (Va.) 662, 15 Am. Dec. 781; Campbell v. Campbell, 37 Wis. 216; Bacon v. Bacon, 43 Wis. 203; Perkins v. Perkins, 16 Mich. 167; McGuire v. McGuire, 7 Dana 187; Alexander v. Alexander, 140 Ind. 560. Under the common law alimony can be awarded only in periodical allowances, not in gross, and this has been modified to the extent only of permitting it to be awarded in gross, but the court can only render a money judgment. R. S. 1899, sec. 2927. Upon "default" by the husband of the payment of the money judgment, the court may enforce payment of its money judgments by execution, sequestration of the rents and profits, etc., but this power only comes into existence after an order for payment has been made and "upon default . . . to pay . . . such alimony." (2) The sentence of plaintiff to the penitentiary suspended all of his civil rights, and the court was without authority to enter a judgment affecting his property rights, until the appointment of a trustee, as required by section 8930, R. S. 1899. R. S. 1899, sec. 2382; Rice v. Lawrence, 29 Kan. 113; New v. Smith, 84 P. 1030; Williams v. Shackleford, 97 Mo. 322. (3) This court in a divorce action, under the pretence of awarding alimony, granted real estate, which under no circumstances it had authority to grant; its judgment was to that extent void. Scott v. Royston, 223 Mo. 568; Fithian v. Monks, 43 Mo. 522; 1 Freeman on Judg. (4 Ed.), secs. 116, 118, 120c; Cooper v. Reynolds, 10 Wall. 316; Richey v. Sayers, 100 F. 520; United States v. Walker, 109 U.S. 258; Windsor v. McVey, 93 U.S. 274; Hall v. Vernor, 49 L. R. A. (W. Va.) 464; Risley v. Bank, 83 N.Y. 337; 24 Am. and Eng. Ency. Law (2 Ed.), 717-19: (4) The judgment undertaking to divest plaintiff of the title to his land being void for want of power of the court to render such judgment, plaintiff is entitled to attack it by a bill in equity. Johnson v. Coleman, 23 Wis. 452; Lumber Co. v. Ward, 85 P. 459; Caruthers v. Hortsfield, 3 Yerg. 366; White v. Espy, 21 Ore. 328; Murray v. Surety Co., 70 F. 346. (5) The first count of plaintiff's petition, having for its purpose the annulling of the judgment, has every element of a direct attack. Van Fleet, Col. Attack, secs. 2 and 3; Wanderley v. Lafayette Co., 150 Mo. 653; Whetstone v. Whetstone, 31 Ia. 276; 2 Colo. Law Times, 59; Truesdail v. McCormick, 126 Mo. 44. (6) Although the judgment was void it constituted color of title, and plaintiff is entitled to the relief he seeks. Jones v. Thomas, 124 Mo. 586. (7) The judgment being such a cloud on plaintiff's title as to require legal acumen to discover its invalidity, a court of equity will entertain jurisdiction to remove the cloud. Bank v. Evans, 51 Mo. 657; Verdin v. St. Louis, 131 Mo. 78; Jewett v. Boardman, 181 Mo. 657; Perkins v. Baer, 95 Mo.App. 78. (8) But if we treat this as a collateral attack on the former judgment, then the count to ascertain title is maintainable, and that part of the former judgment attacked should be declared void for lack of jurisdiction in the court to render the judgment it did render, which infirmity appears on the face of the record. Adams v. Cowles, 95 Mo. 507; State ex rel. v. Tullock, 108 Mo.App. 35. (9) Under the last count of his petition based on sec. 650, R. S. 1899, to ascertain and determine title, plaintiff was entitled to have the judgment of the court as to the title and interest of plaintiff and defendant in the premises in controversy; that count of the petition complied with every requirement of the statute and therefore was not subject to demurrer. Huff v. Land Co., 157 Mo. 65; Spore v. Land Co., 186 Mo. 656; Bulls v. Woolfolk, 175 Mo. 278; Elliott v. Shepherd, 179 Mo. 382. Under this section this action is maintainable without regard to the nature of the claim of the respective parties. Utter v. Sidman, 170 Mo. 289; Meriwether v. Love, 167 Mo. 514; Garrison v. Frazier, 165 Mo. 46. This statute is designed to determine all questions, whether of law or equity, relating to the respective title of the parties. Wheeler v. Land Co., 189 Mo. 289; Scott v. Royston, 223 Mo. 568.
Crosby Johnson and C. C. Johnson for respondent.
(1) If what the plaintiff says is true, then the decree in question was void on its face, and therefore not a cloud upon his title to the land in question. Bolland v. Johnson, 80 Mo. 34; Humphreys v. Milling Co., 98 Mo. 42; Truesdail v. McCormick, 126 Mo. 39. (2) This proceeding, although called by plaintiff's attorney a direct attack on the judgment in question, is unquestionably a collateral attack upon such judgment. It could not be directly attacked except by appeal or writ of error. Truesdail v. McCormick, 126 Mo. 39; Ketchum v. Chrisman, 128 Mo. 38; Sims v. Gray, 66 Mo. 613. (3) Service of writ and summons on defendant in the penitentiary by the sheriff of Cole county, gave the court jurisdiction over the defendant in person. Gray v. Gray, 104 Mo.App. 520; Bland v. Bland, 12 Moah. Eng. Rep. 688. (4) As the property is described in the petition, which was personally served on the defendant in the divorce suit, the decree in that case is impervious to attack for any mere irregularity. Orvis v. Elliott, 65 Mo.App. 96; Jameson v. Kinsep, 85 Mo.App. 298; Covington v. Chamblin, 156 Mo. 574. (5) Our circuit courts are clothed with power to divest and vest title in the parties to the suit, in a proper case. Macklen v. Allenberg, 100 Mo. 337; R. S. 1899, secs. 785, 787. (6) The defendant could not be imprisoned on a judgment for alimony. Kinsolving's Case, 135 Mo.App. 631. (7) The grant of a power is considered to include the use of incidental powers to make the principal grant effective. Hardware Co. v. Building Co., 132 Mo. 452. (8) The circuit court had power to award land as alimony. R. S. 1899, sec. 2126; Berthelemy v. Johnson, 3 B. Mon. (Ky.) 90, 38 Am. Dec. 179; Mussing v. Mussing, 104 Ill. 126; Wheeler v. Wheeler, 18 Ill. 30; Crews v. Mooney, 74 Mo. 29; Williams v. Shackleford, 97 Mo. 322. (9) A homestead is exempt from execution on a judgment for alimony. Biffle v. Pulliam, 114 Mo. 50.
Plaintiff and defendant were formerly husband and wife. This cause comes here upon a judgment sustaining a demurrer to plaintiff's petition. His petition was in three counts originally, but it is stated that the second count thereof, which appears from the trial judge's written opinion filed in the cause to have been a count in ejectment, was dismissed.
In the first count, plaintiff seeks by a direct count in equity to set aside that part of a judgment in a divorce suit between him and his wife by which the title to eighty acres of land in Caldwell county was decreed out of him and vested in his former wife, the defendant herein. In said count it is averred that plaintiff, from 1885 to 1897 was the owner of said land, was the head of a family and lived thereon; that his deed was recorded in Caldwell county; that he has never conveyed the same; that in 1897 he was convicted of murder and sentenced to the penitentiary of Missouri for ten years; that he remained in the penitentiary from 1898 to March 7, 1904, at which time he was released, and on May 19th was granted a full pardon by the Governor of the State. It is then averred that in 1902, whilst plaintiff was thus confined in the penitentiary and civilly dead, the defendant brought suit against him for divorce and alimony, as well as the care and custody of the children, and asked that such alimony or support and maintenance be decreed to her out of the property of this plaintiff; that service of the summons in said divorce suit was had upon plaintiff while he was incarcerated in the penitentiary under the judgment and sentence for murder aforesaid; that he could not defend the same; that in such divorce suit the defendant in this case was granted a divorce from this plaintiff, together with the custody of the children of their marriage, and in said judgment and decree it was further decreed that the defendant in this cause be vested with the title to the land aforesaid, and that the title to the land aforesaid was divested from this plaintiff; that said action was beyond the powers and jurisdiction of the circuit court, and such decree, in so far as it affects the land, was beyond the powers and jurisdiction of the court, but was such as to create a cloud upon plaintiff's title to said land, as well as his homestead rights therein. The said first count concludes with the following prayer:
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