Pike v. Pike

• Decision Date: 01 April 1946
• Docket Number: No. 20674.,20674.
• Parties: EDWARD T. PIKE v. MILDRED W. PIKE.
• Court: Missouri Court of Appeals

193 S.W.2d 637

EDWARD T. PIKE v. MILDRED W. PIKE.

No. 20674.

Kansas City Court of Appeals. Missouri.

April 1, 1946.

Appeal from Jackson County Circuit Court. — Hon. John R. James, Judge.

AFFIRMED.

Marcy K. Brown, Jr., for appellant.

(1) The motion to set aside the decree was not filed within three years after the termination of the term at which the decree was rendered, but notwithstanding it may now be set aside by a proceeding in the nature of a writ of error coram nobis upon proper showing and upon the showing here made, and the court erred in over-ruling defendant's motion to set aside decree. Baker v. Smith's Estate, 18 S.W. (2d) 147; Townsend v. Bank, 148 S.W. (2d) 85; Ex parte Messina, 128 S.W. (2d) 1082. (2) The court erred in over-ruling defendant's motion to set aside decree because it is shown by the facts and admissions in this case that the trial court had no jurisdiction; that the decree was granted upon the assumption by the court of facts which were not shown in evidence and did not exist as facts, the absence of which facts entirely defeated the power of the court to reach a valid result in granting the defendant a decree, which facts were not investigated and determined by the court, it merely being assumed that they were true without proof. Statutory residence of one year was neither alleged in the cross bill nor proved. Nor was it alleged that the offense or injury complained of was committed within the state or whilst one or both of the parties resided within the state, and the cross-bill therefore failed to state sufficient facts to confer jurisdiction. Sec. 1517, R.S. Mo., 1939; Butler v. Butler, 252 S.W. 734; Arndt v. Arndt, 163 S.W. 282; Hinkle v. Lovelace, 102 S.W. 1015. (3) The court erred in over-ruling defendant's motion to set aside decree, because upon the face of the record the decree is void because of lack of the jurisdictional averments. Cox v. Cox, 115 S.W. (2d) 104; St. ex rel. Coonley v. Hall, 246 S.W. 35; St. ex rel. Robbins v. Gideon, 77 S.W. (2d) 647. The decisions of the appellate courts are unanimous that such a petition confers no jurisdiction. Barricelli v. Barricelli, 300 S.W. 1023; Stansbury v. Stansbury, 94 S.W. 566; Gordon v. Gordon, 107 S.W. 410.

Lewis W. Sanders, Henry Depping and Hogsett, Trippe, Depping & Houts, for respondent.

(1) The trial court had jurisdiction when appellant obtained her divorce and therefore did not err in overruling appellant's motion. Section 1514, R.S. Mo. 1939; Section 1517, R.S. Mo. 1939; Butler v. Butler, 252 S.W. 734; Hays v. Hays, (Mo.) 24 S.W. (2d) 997; Baker v. Smith's Estate, 18 S.W. (2d) 147, 151-152; State v. Stanley, 225 Mo. 525; Haines v. Jeffrey Mfg. Co., 31 S.W. (2d) 269. (2) If the decree was subject to any infirmity appellant would not be entitled to relief under her motion because she and her counsel knew all of the matters complained of in her motion when she testified and obtained her decree, and they failed to inform the court about these matters. The State v. Warren Stanley, 225 Mo. 525, 535, 536; State v. Wallace, 209 Mo. 358; Reed v. Bright, 232 Mo. 399, 411; Hadley et al. v. Bernero, 103 Mo. App. 549; Ragland v. Ragland, 258 S.W. 728; Crane v. Deacon, 253 S.W. 1068, 1072, 1073; Kings Lake Drainage District v. Winkelmeyer, 62 S.W. (2d) 1101 1103; State ex rel. Caplow v. Kirkwood, 117 S.W. (2d) 652; Bruner v. Ingersoll-Rand Drill Co., 233 S.W. 256; Degener v. Kelly, 6 S.W. (2d) 998. (3) Appellant invoked the jurisdiction of the court, the judgment was in her favor, she was not prejudiced and she therefore is estopped to attack its jurisdiction and judgment by the present motion. 34 C.J. 398, Sec. 619; 19 C.J. 172, Sec. 427; 19 C.J. 176, Sec. 438; Crane v. Deacon, 253 S.W. 1068; Simmonds v. Simmonds, 138 N.Y.S. 639, 640; Buxbaum v. Mason, 95 N.Y.S. 539; Van Slyke v. Van Slyke, (Mich. Sup.) 152 N.W. 921; Felberbaum v. Felberbaum, 150 N.Y.S. 907; Richeson v. Simmons, 47 Mo. 20; 60 L.R.A. 307; Kinealy v. Macklin, 67 Mo. 95, 99; Lines Music Co. v. Holt et al., 48 S.W. (2d) 92; Aull v. St. Louis Trust Co., 149 Mo. 1, 15; Rosenberger v. Jones et al., 48 Mo. App. 606, 608. (4) Appellant is guilty of laches. State ex rel. Kennedy v. Hogan, 306 Mo. 580, 267 S.W. 619; Bennet v. Terry, 299 S.W. 147; Buffington v. Carty, 195 Mo. 490.

DEW, J.

This is an appeal from a special order of the trial court, after final judgment, overruling appellant's motion designated as a motion in the nature of a writ of error coram nobis, to set aside a decree of divorce previously rendered in her favor on her cross petition.

According to the agreed and approved statement of the case on appeal, the respondent, plaintiff below, husband of appellant, filed divorce proceedings against appellant on March 3, 1938. Personal service on appellant was duly had, and all proper jurisdictional allegations and statutory affidavit were contained in the plaintiff's petition therein. We shall refer hereafter to the respondent and appellant as the plaintiff and defendant, respectively as they appeared in the trial court.

On May 20, 1938, defendant filed answer, specifically entering her appearance, admitting the marriage on February 2, 1918 at Hartford, Connecticut, and admitting that they continued to live together thereafter as husband and wife until February __, 1938, but denying all other allegations of the plaintiff's petition. For further answer and by way of cross petition, defendant alleged, in effect, that the plaintiff, without good or sufficient cause, "left defendant and his home in Kansas City, Missouri", and has since repeatedly said to defendant that he did not care for defendant as his wife and declined to "return to the home an live at such home" as her husband; that such conduct and refusal has become known to defendant's friends, acquaintances, and others, and she has thereby been humiliated and subjected to embarrassment and ridicule, intolerable suffering and grief, impairment of health, and that such condition of mental cruelty has become intolerable, because of which she will be forced to leave Kansas City and return to the eastern part of the United States, where she has always lived until coming to Kansas City "a year ago". She prayed that plaintiff's petition be dismissed and that defendant be awarded a decree of divorce.

On May 20, 1938, plaintiff filed a reply, admitting the marriage and that there were no children, and denied all other allegations in the answer. Plaintiff consented to immediate trial. On the same day the cause was heard. Plaintiff appeared by counsel and defendant appeared in person and by counsel. Plaintiff thereupon dismissed his petition, and evidence was heard on defendant's cross petition. The evidence consisted only of defendant's testimony. Character witnesses were waived. The court found the allegations of defendant's cross petition to be true, and that she was the injured and innocent party, entitled to the relief prayed for by her in said cross petition, and awarded to defendant a decree of divorce as prayed "freed forever from the obligations" of said marriage.

No further proceedings were had in said cause until more than three years and four months thereafter when, on September 24, 1941, defendant filed therein a motion to set aside the decree of divorce so awarded to her on her cross petition, for the alleged reason that the court, neither at the time of the hearing nor at the time of awarding to her said decree, had jurisdiction of said cause upon the pleadings or evidence, to render such decree. As grounds for said motion she allege therein that her cross petition, on its face, failed to state any necessary jurisdictional averments as to required residence in Missouri; that her cross petition failed to state that plaintiff had been guilty of such cruel treatment as to endanger her life, and failed to state that plaintiff had offered her such indignities as to render her condition intolerable, and failed to state facts sufficient to allege that defendant was the innocent and injured party. The motion charged that the court in said proceedings had assumed the foregoing facts to exist when they did not exist, and failed to investigate and determine the same in the rendition of the decree. The motion further alleged that in fact defendant was not a resident of Jackson County, Missouri one whole year next before the filing of her cross petition. The prayer of the motion was that the decree be set aside and held for naught.

The above motion was argued and submitted to the trial judge before whom the divorce proceedings were had, who took the same under advisement, and did not pass upon it during his term of office. It was later submitted to the succeeding trial judge by stipulation, on the record, briefs, and transcript of the evidence. It was also stipulated that the defendant did not "take up residence in Jackson County, Missouri until July 3, 1937". The motion was thereafter on February 12, 1945, overruled; motion to set aside the last ruling of the court was thereafter overruled. Appeal was thereupon taken by the defendant to this court.

The points relied upon by defendant are, in substance, that (1) upon the face of the record, the trial court lacked jurisdiction to grant the defendant a decree of divorce; (2) that the cross petition did not state facts sufficient to constitute a cause of action by defendant against the plaintiff; (3) that the court assumed the jurisdictional facts to exist, when in fact they did not exist, and proceeded therein and entered said decree in the absence of such facts, and failed to investigate or determine the same, and hence the decree was void; said jurisdictional facts not existing in the record being that of residence required by statute to be pleaded, and the allegations of grounds for divorce, and of facts showing defendant to have been the innocent and injured party, and (4) failure of proof of all of such jurisdictional facts.

The substance...