Robertson v. Robertson
| Decision Date | 20 February 1917 |
| Citation | 192 S.W. 988,270 Mo. 137 |
| Parties | ORRIN ROBERTSON, Appellant, v. ESTHER ROBERTSON |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon D. E. Blair, Judge.
Reversed and remanded (with directions).
C. W Bigger for appellant.
In divorce cases "the petition shall be accompanied by an affidavit." R. S. 1909, sec. 2371. Without which the court acquires no jurisdiction, and the said affidavit must be signed by the plaintiff. Loveless v. Hinkle, 204 Mo. 208. An unsigned affidavit is void. Hargadine v. Van Horn, 72 Mo. 370; Norman v. Horn, 36 Mo.App 424; Third National Bank v. Garton, 40 Mo.App. 120. This case, is, in point of law and fact, fully within the case of Dorrance v. Dorrance, 242 Mo. 625.
Griffin & Orr and R. M. Sheppard for respondent.
(1) In the absence of a statute or ruling of court requiring it, the signature of affiant is not necessary for the validity of an affidavit. There is no rule of Jasper Circuit Court, nor is there any statute of the State of Missouri requiring an affidavit to be signed by the affiant. Bouvier Law Dictionary -- Title: Affidavit; 1 Ency. Plead. & Prac. p. 313; Anderson Law Dictionary -- Title: Affidavit; 1 Words and Phrases, p 244. "The word affidavit ex vi termini, means an oath reduced to writing." State v. Headrick, 149 Mo. 403. "The omission of affiant's signature does not affect the validity of the affidavit." Gill v. Ward, 23 Ark. 16; Watts v. Womack, 44 Ala. 605. "An affidavit in attachment is not void because not subscribed if it was duly sworn to." Fortenheim v. Claflin, 47 Ark. 49; Turpin v. Road Co., 48 Ind. 45; Bates v. Robinson, 8 Iowa 318; Wynkoop v. Judge, 113 Mich. 381; Bloomingdale v. Chittenden, 75 Mich. 305. "In the absence of a rule of court or statute requiring it, the subscription to an affidavit by the affiant is not necessary." Norton v. Hague, 47 Minn. 405; Brook v. Sneed, 50 Miss. 416; Alferd v. McCormick, 90 N.C. 151; City v. White, 152 Cal. 190; Albritton v. Williams, 132 Ala. 647; Smith v. Benton, 15 Mo. 371; Laswell v. Church, 46 Mo. 279. "The affidavit and jurat are a part of the petition." Burnes v. Burnes, 61 Mo.App. 618. "When a signature is essential to the validity of an instrument, it is not necessary that the signature appear at the end of the instrument, if the name of the party whose signature is required is written by him in any part of the instrument for the purpose of authenticating it, it is a sufficient signature." 36 Cyc. 449; Moss v. Booth, 34 Mo. 316; Schmidt v. Schmaelter, 45 Mo. 502; State v. Wilcox, 59 Mo. 176. "An instrument is signed where the name appears at the bottom, top, middle or side of a paper, if such name was intended as a signature." 25 Am. & Eng. Ency. Law, 1065. "If by mistake or inadvertence a signature is placed below the jurat this does not render it a nullity." Launius v. Coe, 51 Mo. 147. (2) Sec. 2381, R. S. 1909, prohibits a petition for review in a divorce matter, any law or statute to the contrary notwithstanding. The petition of appellant herein is a petition for a review. The prayer of appellant's petition shows that this is what he seeks to do. He asks that the judgment be set aside and that he be reinstated to his legal rights and given the privilege of answering and defending. Smith v. Smith, 164 Mo.App. 53; Salisbury v. Salisbury, 92 Mo. 683. (3) If, as appellant contends, the decree in the divorce suit was void, then that is the end of it and it does not need this action to void it. The petition of plaintiff treats the decree as being valid. If it is a valid decree then it cannot be reviewed in this sort of an action. If it is void, then it is open to collateral attack at any time. It would appear from reading the petition of plaintiff in this suit that this was an attempt to set aside a judgment in the divorce case on account of fraud. "In order to set aside a judgment for fraud even in a direct proceeding, it must appear that the fraud was practiced in the very act of obtaining the judgment." Fears v. Riley, 148 Mo. 49; Railway Co. v. Mirreiles, 182 Mo. 126; Dorman v. Hall, 124 Mo.App. 9; Smith v. Smith, 164 Mo.App. 53.
This is an action brought for the purpose of annulling a certain decree of divorce entered in the circuit court of Jasper County in the case of Esther Robertson v. Orrin Robertson in February, 1911. The present action was instituted January 2, 1913. The petition herein charges lack of jurisdiction in the circuit court of Jasper County in the case of Esther Robertson v. Orrin Robertson. It also charges fraud in the procurement of that judgment. Upon trial the circuit court dismissed plaintiff's bill and entered judgment against him. From such judgment the plaintiff appealed to the Springfield Court of Appeals, which court by a divided opinion reversed and remanded such cause, with directions to the trial court to enter a judgment for plaintiff on his bill. One of the judges dissented and certified the case here. It therefore reaches us in due form, and is here for consideration from all angles.
In the Court of Appeals the division of the court arose upon the sufficiency of the affidavit attached to the petition of plaintiff in case of Esther Robertson v. Orrin Robertson. In that case the petition is very short, and charges as a ground for divorce:
"But the said defendant wholly disregarding his duties as the husband of the plaintiff, did on said September 16, 1908, desert and leave plaintiff and has absented himself without a reasonable cause for the space of one year, to-wit, since the 16th day of September, 1908, that ever since last named date, defendant wholly disregarding his duties as the husband of plaintiff, has failed and neglected to support plaintiff, has contributed nothing to plaintiff with which to provide for her the necessities of life."
This petition alleges defendant to be a non-resident of Missouri, and had other usual formal allegations. This petition was signed "Esther Robertson, Plaintiff." Following this signature was the following:
Jasper County, Missouri.
Commission expires Feb. 28, 1914."
It will be noted that the said Esther Robertson did not subscribe to the affidavit, and this was the bone of contention in the Springfield Court of Appeals. The majority opinion held that the circuit court, under these documents, acquired no jurisdiction in Esther's case, and that its judgment should be annulled. The minority opinion contra. Other matters will be stated, if necessity requires.
I. The majority opinion in this case is bottomed on the case of Hinkle v. Lovelace, 204 Mo. 208, 102 S.W. 1015. Whilst this court was divided upon some questions in that case, we were a unit in holding:
In other words we held that unless a petition for divorce was accompanied by the affidavit required by the statute, the circuit court would acquire no jurisdiction in the case. We see no reason for departing from that rule. In that case the affidavit attached to and filed with the petition, was made by an agent of the plaintiff, and we held that in law it was no affidavit at all. In other words, that the plaintiff was the only person that could make the affidavit required by the statute. The difference between that case and this case is, that in the one the agent undertook to and did make the affidavit, whilst in the other the plaintiff is averred by the notary to have sworn to the facts in the affidavit, but did not sign it. It will be observed that the Hinkle case settles the jurisdictional character of the affidavit, but does not settle the sufficiency of the instrument involved here. That matter we take next.
II. This case presents a very interesting question, and as it comes to this court upon a certification of the Court of Appeals, all questions involved are here for consideration, as if the cause was one appealable to this court in the first instance. If the affidavit in the divorce case is insufficient to confer jurisdiction, it is because the same is not signed by the plaintiff in that proceeding. The general rule supported by the weight of the authorities, is thus stated in 2 Corpus Juris, p. 357:
"It is generally held that, in the absence of any statute or rule of court requiring a signature, if it clearly appears who made the affidavit, and the fact of his swearing is certified by a proper officer, the affidavit is sufficient, although not subscribed by the affiant."
The authorities cited do not include Missouri, however. So too we find in 1 R. L. C. 769, the general rule stated in this...
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