Prather v. Prather

• Decision Date: 15 December 1953
• Docket Number: No. 28723,28723
• Citation: 263 S.W.2d 57
• Parties: PRATHER v. PRATHER.
• Court: Missouri Court of Appeals

Page 57

263 S.W.2d 57

PRATHER v. PRATHER.

No. 28723.

St. Louis Court of Appeals, Missouri.

Dec. 15, 1953.

Rehearing Denied Jan. 15, 1954.

Thurman, Nixon & Blackwell, J. W. Thurman, and Jeremiah Nixon, Hillsboro, for appellant.

Ennis & Saunders, Festus, for respondent.

HOLMAN, Special Judge.

The defendant (appellant) Wade H. Prather has appealed from the order of the Circuit Court of Jefferson County overruling his motion to quash an execution.

Plaintiff, Gwinth Prather (respondent), instituted this action on the 12th day of August, 1950, by filing her petition for divorce in said court. On September 12, 1950, plaintiff's motion for allowances was heard and the court ordered that the defendant pay her forty dollars each month as alimony pendente lite and sixty dollars for her attorney fees. Thereafter, the defendant filed his application to disqualify Hon. Edward T. Eversole, the judge of said court. This application was sustained on October 19, 1950, and the parties agreed upon Hon. Will B. Dearing, an attorney, to act as special judge in the cause.

The case was tried before Judge Dearing and on March 29, 1951, a decree was entered by said special judge granting the plaintiff a divorce but she was not allowed alimony or additional attorney fees. No motion for new trial was filed and this decree became final in due course of time.

On March 3, 1952, at the request of the plaintiff, an execution was issued by the circuit clerk of Jefferson County whereby plaintiff sought to collect from the assets of the defendant the sum of $260 alleged to be due and unpaid upon the judgment for alimony pendente lite and attorney fees. Thereafter the defendant filed a motion to quash this execution alleging that said judgment had been fully settled by a stipulation entered into by said parties and filed in a partition suit that had been instituted shortly after the divorce decree was rendered.

The motion to quash was heard by Judge Eversole on December 1, 1952, and was, on said date, overruled. Each of the parties offered evidence upon the issue raised by the motion and fully participated in the hearing. It should be noted that neither party made any objection to the right or authority of Judge Eversole to hear and decide this motion. The defendant in his motion for new trial alleged, for the first time, that the regular judge had no jurisdiction or authority to hear this motion because he had previously been disqualified and a special judge chosen by agreement. The motion for new trial was overruled and the defendant has perfected his appeal to this court.

The only point relied upon by the defendant on this appeal is the contention that Judge Eversole had no authority to hear and decide this motion. He contends that said court, with the regular judge presiding, had no jurisdiction over the subject matter of this cause and hence it follows that the order complained of was absolutely void.

In support of this assertion defendant has cited a number of cases, including Ex parte Haley, 99 Mo. 150, 12 S.W. 667; State ex rel. Fowler v. Calvird, 230 Mo.App. 548, 93 S.W.2d 1106 and State ex rel. Hentschel v. Cook, Mo.App., 201 S.W. 361, none of which we think are in point. These cases hold that when a change of venue is taken from one county to another, complete jurisdiction is vested in the court of the county to which the cause is transferred and no jurisdiction whatever remains in the county where it originated. Defendant, however, overlooks the fact that the venue was never changed in the instant case. The venue, as well as jurisdiction of the parties and subject matter, has always been in the Circuit Court of Jefferson County. The issue here is whether the regular judge of that court had authority to hear and determine this motion. If he did not, was it a question of jurisdiction of the subject matter or was his assumption to act in this cause simply error which would be waived unless a timely objection was interposed?

When the motion was called up for hearing the regular judge, if he recalled that he had been disqualified more than two years before, evidently proceeded upon the theory that the authority of the special judge expired when the divorce decree became final and since the motion involved an issue having no connection with the merits of the divorce suit he could properly hear the same. Many cases state the general rule, that the jurisdiction of a special judge continues until the termination of the case by final judgment. Edmonds v. Scharff, 279 Mo. 78, 213 S.W. 823. It is our view, however, that this motion should have been heard by a special judge. We think that the disqualification of the regular judge applied to any matter, other than purely formal orders, that might ever require adjudication in this cause. A motion to quash an execution is not an independent proceeding, but is regarded as an adjunct to the original case. Wyoma Leather Co. v. Modern Hat & Cap Mfg. Co., Mo.App., 67 S.W.2d 815. If, as the cases would seem to indicate, the authority of the special judge terminated when the divorce decree became final, then appropriate steps should have been taken to procure...