Reger v. Reger

• Decision Date: 11 April 1927
• Docket Number: 25479
• Citation: 293 S.W. 414,316 Mo. 1310
• Parties: Catharine C. Reger, Appellant, v. Enoch Reger et al
• Court: Missouri Supreme Court

293 S.W. 414

316 Mo. 1310

Catharine C. Reger, Appellant, v. Enoch Reger et al

No. 25479

Supreme Court of Missouri

April 11, 1927

Appeal from Sullivan Circuit Court; Hon J. E. Montgomery Judge.

Reversed and remanded.

J R. Painter and D. M. Wilson for appellant.

(1) In equity cases on appeal, the Supreme Court proceeds de novo to hear and determine the cause, deferring somewhat to the findings of the trial court. First Nat. Bank v Link, 275 S.W. 939. (2) Domestic judgments and those standing upon like footing import verity, and public policy forbids their indirect and collateral contradiction or impeachment. If a party has been overreached, the law furnishes him ample remedy to avoid the consequences of the fraud in the court and jurisdiction where the judgment or decree was rendered. Stuart v. Dickson, 290 Mo. 516; Ambler v. Whipple, 139 Ill. 325; Lieber v. Lieber, 239 Mo. 1; Baisley v. Baisley, 113 Mo. 544; Hagerman v. Sutton, 91 Mo. 519; Chase v. Christianson, 41 Cal. 253; Werz v. Werz, 11 Mo.App. 26; State ex rel. v. Callaway, 208 Mo.App. 447; Gould v. Crow, 57 Mo. 200; Cates v. Cates, 202 Mo.App. 352; Kimmer v. Kimmer, 45 N.Y. 535; Howey v. Howey, 240 S.W. 450; Houpt v. Simington, 27 Mont. 480; I Black on Judgments (2 Ed.) 291; Howard v. Scott, 225 Mo. 712; Edgarton v. Edgarton, 12 Mont. 148; Sodini v. Sodini, 94 Minn. 301; Railway Co. v. United States, 168 U.S. 1; Douglass v. State, 124 S.W. 933, 137 A. S. R. 930; 19 C. J. sec. 435, note 53. (3) To constitute a direct attack on a judgment, a proceeding must be instituted for that very purpose. If an appeal be taken, or writ of error sued out, or motion made to vacate the judgment or to annul it for fraud by bill in equity, the attack is a direct one, the sole object of the proceeding being to disprove the apparent validity of the judgment. But if the proceeding has an independent purpose and contemplates some other result, although the overturning of the judgment may be important or even necessary to its success, then the attack is a collateral one. 1 Black on Judgments (2 Ed.) sec. 252; 15 R. C. L. 838, 839; Hester v. Hester, 103 Miss. 13; Morrill v. Morrill, 20 Ore. 101; Lovitt v. Russell, 138 Mo. 474. (4) The burden of proof is on the respondents. 18 R. C. L. 428; Potter v. Clapp, 203 Mass. 592; Johnson v. Johnson, 114 Ill. 611; Coal Co. v. Jones, 127 Ill. 379; Blanchard v. Lambert, 43 Iowa 228; Richardson v. King, 157 Iowa 287; Hunter v. Hunter, 111 Cal. 261; Gosset v. Gosset, 112 Ark. 56; McCormick v. McCormick, 82 Kans. 43; Shepard v. Carter, 86 Kans. 125; Johnson v. Johnson, 114 Col. 617; Boulden v. McIntire, 119 Ind. 574; Murcheson v. Green, 128 Ga. 339. (5) A judgment obtained by fraud may be impeached by the parties to it or those in privity with them, in a direct proceeding for that purpose. But parties to an action and parties in privity with them cannot collaterally impeach a judgment on the ground of fraud. Freeman on Judgments, sec. 336; DeGraw v. DeGraw, 7 Mo.App. 121; State ex rel. v. Ross, 118 Mo. 45; Hart v. Hunter, 52 Tex. Civ. App. 75, 114 S.W. 884; Morris v. Saddler, 74 Kan. 892, 88 P. 69; Reed Bros. v. Nicholson, 158 Mo. 624; Johnson v. Realty Co., 167 Mo. 341; Davidson v. Real Estate & Inv. Co., 226 Mo. 1; Edwards v. Harrison, 236 S.W. 328. (6) A judgment may be impeached in a collateral attack on the ground of fraud in its procurement by a stranger to it; but if his right accrues to him after the rendition of the judgment obtained by fraud, he cannot attack it on that ground in a collateral proceeding. Abington v. Townsend, 271 Mo. 602; Stoutimore v. Clark, 70 Mo. 478; Hogg v. Link, 99 Ind. 346; Johns v. Pattee, 55 Iowa 665; Freeman on Judgments, sec. 335; Githens v. Barnhill, 184 S.W. 145. (7) If the court had jurisdiction of the subject matter, and jurisdiction of the person, as shown by its record, then a collateral attack must fail. Williams v. Williams, 53 Mo.App. 619; Howey v. Howey, 240 S.W. 457. (8) Where it is necessary for a court to find certain jurisdictional facts, and the court finds them to exist, a decree rendered thereon cannot be questioned otherwise than by appeal or writ of error. Such a judgment is res adjudicata, whether the judgment is attacked collaterally or directly, as in a suit to set it aside for fraud, the jurisdictional facts being like any other facts constituting the cause of action. Crane v. Deacon, 253 S.W. 1068; Mullins v. Rieger, 169 Mo. 521; Peeters v. Shultz, 254 S.W. 182; Chase v. Christianson, 41 Cal. 253; McCormick v. McCormick, 82 Kan. 31; Miller v. Miller, 89 Kan. 151; 23 Cyc. 1088. (9) No action can be brought to charge any person upon any agreement made in consideration of marriage, unless the agreement upon which the action shall be brought shall be in writing and signed by the parties to be charged therewith. Sec. 2169, R. S. 1919; Reigart v. Coal Co., 217 Mo. 142; Logan v. Phillips, 18 Mo. 22; Mowser v. Mowser, 87 Mo. 431; Farris v. Coleman, 103 Mo. 352; Moran v. Stewart, 173 Mo. 207; King v. King, 184 Mo. 99. (10) The marriage in Kansas was valid. Sec. 7594, Kansas Statutes. Divorce judgment in another state given full faith and credit in Kansas, Sec. 7584, Kansas Statute. The marriage tie being dissolved by the Missouri divorce decree, each was as free as before marriage. McCormick v. McCormick, 82 Kan. 49; Durland v. Durland, 67 Kan. 734; Green v. McDowell, 210 Mo.App. 517; State v. Clark, 178 Mo. 20. A decree of divorce rendered in accordance with the laws of the forum by a court having jurisdiction of the subjectmatter and of the parties is valid everywhere, and will be given full force and effect in all other states where the same matters come in issue. 14 Cyc. 814. The prohibition upon the party to remarry has no reference to a decree granted in another state. Bullock v. Bullock, 122 Mass. 3; Staples v. Peabody, 83 Me. 207.

A. G. Knight, Marr & Ash, Platt Hubbell and Geo. H. Hubbell for respondents.

(1) In obtaining her decree of divorce in the Jackson Circuit Court the plaintiff (appellant here) fraudulently represented that she, personally, herself, had signed her own name to her divorce petition. Since the plaintiff did not sign the affidavit in support of her divorce petition, herself, and since her name was signed to said divorce affidavit by some other person, the Jackson Circuit Court had no jurisdiction of the divorce suit, and said divorce decree is subject to collateral attack here. Hinkle v. Lovelace, 204 Mo. 208; Crane v. Deacon, 253 S.W. 1071; Robertson v. Robertson, 270 Mo. 137. (2) The Chanute marriage is void. Higgins v. Breen, 9 Mo. 497; Henderson v. Henderson, 265 Mo. 718; 19 Am. & Eng. Ency. Law, 1211; R. S. 1919, sec. 7300. (3) The separate maintenance judgment is not res adjudicata. The cause of action here is another and different one. Here the plaintiff sues for a child's part, in partition, sues for a claim which she asserts is allowed by law -- without reference to the conduct of James K. Reger. State ex rel. Blair v. Mining Co., 262 Mo. 490; Chemical Co. v. Kirven, 215 U.S. 252; Harrison v. Remington, 3 L. R. A. 964; Blair v. Blair, 247 Mo. 61; Central Co. v. Fidelity Co., 51 L. R. A. (N. S.) 797. (4) The Missouri divorce decree was procured by committing a fraud on the Jackson Circuit Court. To confer jurisdiction it is necessary for the plaintiff to prove that she was a resident of Missouri from November 14, 1916, until November 14, 1917. Plaintiff has failed with reference to both the beginning and the ending of this vital period. She was a resident of Chanute, Kansas, until December 20, 1916. She was a resident of Oskaloosa, Kansas, from October 17, 1917, until Christmas 1917. Collins v. Collins, 53 Mo.App. 470; R. S. 1919, secs. 7058, 1802; Johnson v. Johnson, 95 Mo.App. 329; 4 Words & Phrases (2 Ser.) pp. 337, 343; 5 Words & Phrases (1 Ser.) pp. 4226, 4227. The Jackson Circuit Court was fraudulently induced to assume and exercise jurisdiction by the foregoing fraudulent misrepresentations. Bell v. Bell, 181 U.S. 175, 45 L.Ed. 804; Streitwolf v. Streitwolf, 181 U.S. 179; 45 L.Ed. 807; C. R. I & P. Ry. Co. v. Callicotte, 267 F. 799; Callicotte v. Ry. Co., 16 A. L. R. 386; 19 Am. & Eng. Ency. Law, pp. 1209, 1213, 1215, 1176, 1177; Wagoner v. Wagoner, 287 Mo. 567, 589; State v. Westmoreland, 8 L. R. A. 842; Dorrance v. Dorrance, 242 Mo. 651; 1 Freeman on Judgments (5 Ed.) 633; Sammons v. Pike, 23 L. R. A. (N. S.) 1254, 133 Am. St. Rep. 425; Lieber v. Lieber, 239 Mo. 40; McCormick v. McCormick, 82 Kan. 31. (5) Regardless of whether the divorce decree is void for want of jurisdiction in the Jackson Circuit Court, the marriage ceremony is void for the reason that it occurred just three months and twenty-four days after the granting of the decree. Smith v. Woodworth, 44 Barb. 198; Cox v. Combs, 47 Ky. 231; Smith v. Fife, 30 P. 1059; Niece v. Territory, 60 P. 300; Conn v. Conn, 42 P. 1009; Blush v. State, 46 P. 186; Wilhite v. Wilhite, 21 P. 173; McLennan v. McLennan, 31 Ore. 480; Johnson v. Johnson, 26 L. R. A. (N. S.) 179; Wilson v. Cook, 43 L. R. A. (N. S.) 365; Hall v. Com., L. R. A. 1917 D, 829. If the Missouri divorce decree is legal, then it is of the same force and effect as if it had been rendered in the District Court of Neosho County, Kansas, on the 13th day of February, 1918. McCormick v. McCormick, 107 P. 548, 82 Kans. 31. The defendants expressly invoke the constitutional provisions specially pleaded in their answer that plaintiff being a citizen of Kansas at the time of her alleged marriage to James K. Reger, and prior thereto, is bound by the Kansas statute precluding her marriage within six months after the date of her divorce decree. To deprive the defendants of their rights under this Kansas statute, is in violation of the constitutional provisions...