Robertson v. Robertson

• Decision Date: 10 February 1914
• Citation: 163 S.W. 266,178 Mo.App. 478
• Parties: ORRIN ROBERTSON, Appellant, v. ESTHER ROBERTSON, Respondent
• Court: Missouri Court of Appeals

163 S.W. 266

178 Mo.App. 478

ORRIN ROBERTSON, Appellant, v. ESTHER ROBERTSON, Respondent

Court of Appeals of Missouri, Springfield

February 10, 1914

Appeal from Jasper County Circuit Court, Division No. Two.--Hon David E. Blair, Judge.

REVERSED AND REMANDED (with directions). CERTIFIED TO THE SUPREME COURT.

Reversed and remanded.

C. W Bigger for appellant.

(1) The court acquired no jurisdiction of the cause of defendant for the reason the petition was not accompanied by an affidavit such as required by section 2371, R. S. 1909, it was signed by no one. Loveless v. Hinkle, 204 Mo. 208; Hargadan v. Van Horn, 72 Mo. 370; Norman v Horn, 36 Mo.App. 424; Third National Bank of Sedalia v. Garton, 40 Mo.App. 120. (2) This action is in the fullest extent and meaning, an action in rem and the judgment sought to be set aside is the res and the only court that could have jurisdiction of this action is the one in which the said judgment was rendered. Beyer v. Trust Company, 63 Mo.App. 527. (3) A court of equity, can set aside its decrees for divorce when the facts warrant it. Dorrance v. Dorrance, 242 Mo. 625.

Griffin & Orr and R. M. Sheppard for respondent.

(1) Appellant's abstract of record contains only the petition, answer and judgment. It does not show that this cause was ever tried at a term of court. Such an abstract is fatally defective. Floyd v. Modern Woodmen, 137 S.W. 12. (2) It does not show the filing of a motion for new trial or any exceptions to the action of the court thereon. These must be shown. Donnovant et al. v. Rinn, 156 S.W. 64; Keaton v. Weber, 233 Mo. 691. (3) It does not state that a bill of exceptions was duly filed or show any record entry concerning the same either by leave of court or otherwise. Donnovant v. Rinn, 156 S.W. 64; Dalton v. Register, 154 S.W. 67; Recar v. Recar, 154 S.W. 423. (4) It does not state that an appeal was duly taken. It makes no mention of an appeal. An abstract of record must show that the order granting the appeal was made of record. Keaton v. Weber, 233 Mo. 691; Floyd v. Modern Woodmen, 137 S.W. 12; Rule 32 of this court; Flannagan Milling Co. v. St. Louis, 222 Mo. 306. (5) Rule 15 of this court requires that documentary evidence which a party claims was wrongfully excluded must be set out in full. This was not done and appellant's brief does not comply with court rule 18. (6) A motion for a new trial must definitely set out the reasons therefor so as to direct the attention of the trial court to the precise error of which complaint is made. Aultman & Taylor Mchy. Co. v. Organ, 149 Mo.App. 102; Canaday v. Mellette, 155 S.W. 476. (7) Appellant can raise no question here save and except that presented in his motion for new trial. Dazey v. Elvin, 153 Mo.App. 435. (8) In the absence of a rule of court or statute requiring it, if affiant's name appears in an affidavit as the person who took the oath, the subscription to it by affiant is not necessary. Bouvier Law Dictionary-Title-Affidavit; 1 Ency. Pl. & Pr. p. 313; Anderson Law Dictionary-Title-Affidavit; State v. Headrick, 149 Mo. 403; Smith v. Benton, 15 Mo. 371; Launius v. Coe, 51 Mo. 147; Laswell v. Church, 46 Mo. 279; 36 Cyc. 449; Moss v. Booth, 34 Mo. 316; Schmidt v. Schmaelter, 45 Mo. 502; State v. Wilcox, 59 Mo. 176.

FARRINGTON, J. Sturgis, J., concurs. Robertson, P. J., dissents in a separate opinion.

OPINION

FARRINGTON, J.

This action is designed to accomplish the annulment of a decree of divorce granted Esther Robertson by the circuit court of Jasper county, Missouri, at its February term, 1911, and is based on charges of fraud in the procurement thereof.

Plaintiff's petition herein alleges that in 1908 Esther Robertson was unsuccessful in a divorce suit against plaintiff in the circuit court of Jackson county, Missouri, and that in 1909, in the same county in a second action for divorce against plaintiff, after the court had heard the evidence and intimated that the petition would be dismissed, a nonsuit with leave was taken, and that she then went to Jasper county and obtained in 1911 the decree of divorce which is sought to be set aside in this action.

Plaintiff in the petition herein avers that service in the divorce action in question was made on him by publication which did not come to his attention until after the expiration of the term of court at which the decree was rendered, and that he had good and meritorious defenses to said action, setting them forth with the allegation that the divorce court had no jurisdiction of the parties or subject-matter.

Respondent, on October 30, 1913, having on October 25, 1913, given appellant notice of his intention to file a motion to dismiss this appeal accompanied by a copy of said motion as required by our Rule 25, filed the same in printed form supported by a brief. Numerous grounds for dismissal are urged and respondent's counsel in oral argument insisted that the appeal be dismissed. In many of respondent's contentions no heed seems to have been paid to our Rule 15 which was intended to simplify appellate procedure and yet maintain an orderly system so that neither the respondent nor the appellate court would be imposed on. Had this appeal been presented before the amendment of that rule, respondent would readily have escaped a review of the controversy in this court.

As the first ground for dismissal of the appeal, respondent states that appellant's pretended abstract of the record does not contain any abstract of the court proceedings other than the pleadings in the cause and a copy of the judgment, and that it does not show that the cause was ever tried at a term of court. If it were true that the abstract of the record proper merely set forth the pleadings and judgment, the motion to dismiss the appeal would be overruled because there would be sufficient to obtain a review of the record proper. We do not say that we are limited to a review of the record proper because our Rule 15 enables an appellant to slip through many tight places, as this opinion will demonstrate. As to the contention that the abstract of the record does not show that the cause was ever tried at a term of court, it does show that the petition was filed on January 2, 1913, and that summons issued returnable to the February term, 1913, and there is also this statement: "March 24, 1913, during said February term of court" followed by a copy of the judgment which recites that a trial was had, etc. We think this was sufficient.

It is insisted as ground for dismissal that the abstract of the record proper "does not show the filing of a motion for a new trial, nor that the same was passed upon, nor any exceptions to the action of the court in overruling the motion for new trial. It nowhere mentions such a motion." This is true. The insistence that it does not show "any exceptions to the action of the court in overruling the motion for new trial" is novel. Our understanding has always been that matters of exception are to be looked for in the abstract of the bill of exceptions. As to the failure of the abstract of the record proper to show the filing of a motion for a new trial, we point to Rule 15, the effect of which is that if the abstract of the bill of exceptions shows the filing of a motion for a new trial, the abstract will be deemed sufficient. As to the failure of the abstract of the record proper to show the overruling of the motion for a new trial, this is always required to be stated in the abstract of the bill of exceptions, and since by our written rule we have said we will look to the abstract of the bill of exceptions for a showing that a motion for new trial was filed, manifestly we should not refuse to look there for an entry of no greater importance. Respondent does not for a moment contend that a motion for a new trial was not filed or was not overruled. In fact, the abstract of the bill of exceptions shows that one was filed and overruled during the term at which the trial was had, and that exception was saved.

It is claimed that the abstract of the record proper "does not state that a bill of exceptions was duly filed or show any record entry concerning the same by leave of court or otherwise." This is true. Rule 15 provides that if there is--even in the abstract of the bill of exceptions--any statement that the bill of exceptions was signed, sealed and filed and made a part of the record at the proper time and in the proper manner, the abstract will be deemed sufficient as to such matters, and that in motions challenging the sufficiency of the abstract as to such matters, it will not be a sufficient objection to state that the abstract does not show such steps were taken in proper time or in a proper manner, but that the motion must specifically allege that as a matter of fact such steps were not taken at all, or not in proper time or in proper manner, as the case may be, and that thereupon the appellate court will determine the matter. Respondent does not contend that a bill of exceptions was not filed, signed and made a part of the record. In fact, the abstract of the bill of exceptions shows that a bill of exceptions was signed, filed and made a part of the record. Rule 32 is not opposed to Rule 15 in this particular.

It is insisted that the abstract of the record proper does not state that an appeal was duly taken, and makes no mention of an appeal. After the abstract of the bill of exceptions is concluded, we find this statement which has the earmark of a record entry: "Now comes the plaintiff and files herein his affidavit for an appeal in this cause, and said affidavit, being by the court examined and deemed sufficient an appeal in this cause is allowed to the Springfield Court of Appeals." True, it is out of place. But Rule 32 provides that when ...