Mefford v. Mefford

• Decision Date: 08 April 1930
• Docket Number: No. 20944.,20944.
• Citation: 26 S.W.2d 804
• Parties: MEFFORD et al. v. MEFFORD.
• Court: Missouri Court of Appeals

26 S.W.2d 804

MEFFORD et al. v. MEFFORD.

No. 20944.

St. Louis Court of Appeals. Missouri.

April 8, 1930.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Suit by Hazel Mefford against Harry K. Mefford. Decree for plaintiff, and, from a judgment vacating an order setting aside the decree after defendant's death on the motion of John M. Mefford, administrator of decedent's estate, plaintiff appeals.

Reversed.

Hostetter & Haley, of Bowling Green, for appellant.

E. L. Corwine, of Frankford, and May & May, of Louisiana, for respondents.

HAID, P. J.

This is an appeal from a judgment entered May 18, 1929, vacating an order entered at the preceding term setting aside a decree of divorce granted to a wife and reinstating the divorce decree.

The facts show that the petition for divorce was filed August 30, 1928, based upon the ground of general indignities. Defendant was duly served with summons on August 31, 1928, and, the defendant having made default, a decree of divorce was entered on January 14, 1929, being the January term of the court subsequent to the service of the summons; on March 11, 1929, after the death of her husband, but during the January term, and being the last day thereof, the plaintiff in the divorce suit filed a motion to set aside the judgment of divorce setting out all the facts, the filing of the petition, the default of defendant in failing to answer and judgment for divorce. Plaintiff further alleged in said motion that defendant had used some of her money which he had never repaid, that she did not pray for temporary or permanent alimony in her petition, nor did she ask for suit money, because she had an understanding and agreement with the defendant that, if she did not do so, he would repay her the money which he had used that belonged to her, and would also treat her right about her interest in his property, would deal fairly with her in the division thereof, but did not want their property interests to be thrashed out in court; that, relying upon his representations, which were made by him both before and after she began her suit for divorce, she did not ask for any relief by way of alimony, etc.; that subsequent to the rendition of the divorce decree she had an interview with the defendant, and also attended a dance and danced with the defendant, and during these two occasions they had negotiations toward having the divorce set aside or remarrying; that on February 21, 1929, the defendant died, leaving no lineal descendants, but that he did leave collateral heirs, and that he left an estate of approximately $7,000 in value; that it was the real intention of the defendant that she should be the chief beneficiary of his estate; that the defendant died suddenly, and failed to do or perform any of the agreements or understandings which she had with him with reference to their property rights and interests, and failed to repay her the money that he had used which belonged to her, and failed to turn over any portion of his property to her as agreed. On March 11, 1929, at the January term, the court entered an order reciting that it heard evidence in respect to the motion aforesaid, and, being fully advised in the premises, ordered that said motion be sustained, and thereupon set aside, canceled and held for naught the decree of divorce, and further reciting that on plaintiff's motion the petition for divorce was dismissed.

After the close of the January, 1929, term of the circuit court of Pike county, and on March 27, 1929, in vacation, John M. Mefford, administrator of the estate of the defendant in the divorce suit and certain of deceased's heirs, filed a motion to set aside and cancel the order theretofore made at the previous term vacating the decree of divorce; eight grounds in support of the motion being assigned by the movants in support thereof.

The appellant contends, among other things, that the trial court erred in entertaining the motion to set aside the judgment entered the previous term. This contention makes it necessary to consider our statutes.

Section 1532 (Rev. St. 1919) provides that final judgments may be vacated on petition for review when entered against any defendant who shall not have been summoned as required, or who shall not have appeared to the suit, or has been made a party as the representative of one who shall have been summoned or appeared, but, under the circumstances set out in section 1533, the petition must be filed within one year after service of notice and copy of judgment upon the defendant, and, in any event (under section 1534), such petition must be filed within three years.

Section 1550 is our statute of jeofails, which provides that judgments shall not be reversed, impaired, or in any way affected by reason of imperfections, omissions, and defects therein set forth, while section 1551 provides for amendments to cure such omissions, imperfections, and defects, and section 1552 provides that judgments shall not be set aside for irregularity, on motion, unless such motion be made within three years after the term at which such judgment was rendered.

Sections 1811 and 1812 of our divorce statute read as follows:

"Sec. 1811. Appeals and Writs of Error. —No final judgment or order rendered in cases arising under this article shall be reversed, annulled or modified, in the supreme or any other court, by appeal or writ of error, unless such appeal shall have been granted during the term of court at which the judgment or order appealed from was rendered, or unless such writ of error shall have been issued within sixty days after the order was made or judgment was rendered."

"Sec. 1812. Decree of Divorce not subject to Review—Otherwise as to Alimony.—No petition for review of any judgment for divorce, rendered in any case arising under this article, shall be allowed, any law or statute to the contrary notwithstanding; but there may be a review of any order or judgment touching the alimony and maintenance of the wife, and the care, custody and maintenance of the children, or any of them, as in other cases:"

It will be observed that section 1811 specifically prohibits the reversal, annullment, or modification of any final judgment or order in a divorce case by appeal or writ of error, unless appeal be granted during the term at which the same was rendered, or unless such writ of error shall have been issued within sixty days after the order was made or judgment was rendered.

No appeal...