Rodgers v. White, 6704.

• Decision Date: 24 April 1947
• Docket Number: No. 6704.,6704.
• Citation: 201 S.W.2d 781
• Parties: STATE EX REL., J.D. RODGERS, RELATOR, v. WARREN L. WHITE, JUDGE OF THE CIRCUIT COURT OF GREENE COUNTY, RESPONDENT.
• Court: Missouri Court of Appeals

201 S.W.2d 781

STATE EX REL., J.D. RODGERS, RELATOR, v. WARREN L. WHITE, JUDGE OF THE CIRCUIT COURT OF GREENE COUNTY, RESPONDENT.

No. 6704.

Springfield Court of Appeals. Missouri.

April 24, 1947.

Original action in prohibition by the State on the relation of J.D. Rodgers against Warren L. White, Judge of the Circuit Court of Greene County. A preliminary writ was issued.

WRIT MADE PERMANENT.

Stemmons & Colvin for relator.

H.L. Teaff for respondent.

VANDEVENTER, J.

This is an original action of prohibition. Elsie Marie Rodgers is a resident of Greene County, and her husband, J.D. Rodgers, is a resident of Lawrence County. On the 29th day of January, 1947, she filed a separate maintenance suit against her husband in Greene County. Summons was issued by the clerk of the circuit court of Greene County and it was served upon the defendant in Lawrence County by the Sheriff of that county. The defendant (appearing for the purpose of the motion only) filed a motion to dismiss or, in the alternative, to quash the summons because the court had no jurisdiction over his person. This motion was overruled by the trial judge and the defendant was ordered to file an answer within ten days. Instead of obeying the order, he filed an application for a writ of prohibition in this court. A preliminary writ was issued. A return to the writ was filed admitting the facts as herein set out. Briefs have been filed and the question for us to decide is, whether a suit for separate maintenance must be filed in the county in which the defendant lives or in the county in which the plaintiff lives and the defendant may be found as provided by Section 871, Revised Statutes of Missouri, 1939, or may the suit be instituted in the county where the plaintiff lives and process issued to and service had in any county in the state where the defendant lives as provided by Section 1515, Revised Statutes of Missouri, 1939.

There was no divorce or separate maintenance at common law. In Missouri it is all statutory. The first law on the subject was passed May 13, 1807 (1 Territorial Laws 90) under the general title of "Divorce and Alimony" and provided for divorce from bed and board as well as from the bonds of matrimony. This was changed after the state was admitted to the Union and on January 17, 1925 a new act on divorce and alimony was approved containing a section permitting a divorce from bed and board on the grounds of extreme cruelty and also a divorce from bed and board might be granted for any of the reasons that would entitle the petitioner to a divorce from the bonds of matrimony.

Section 9 of this act, for the first time in this state, provided for a separate maintenance suit and with slight changes it is the same as Section 3376, Revised Statutes of Missouri, 1939. This Section was retained in the Chapter on "Divorce and Alimony" until 1865. [Revised Statutes of Missouri, 1835, p. 225; Revised Statutes of Missouri, 1845, p. 428; Revised Statutes of Missouri, 1855, p. 665]

In 1865, the revising session of the legislature took the separate maintenance section from the chapter on "Divorce and Alimony" and built around it another chapter, No. 115, entitled "Of Husband and Wife and the Rights of Married Women." Under chapter 114, entitled "Of Divorce, Alimony and Custody of Children" it left all of the old sections relating to divorce and added two new ones, not material here. In this new chapter 115, Section 6 provides: "The petition of a married woman for any of the purposes before mentioned, may be brought, heard and determined in the circuit court, and the like process and proceeding shall be had thereon as are had in other civil cases." This section is the same as Section 3382, Revised Statutes of Missouri, 1939, except in the former, it uses the words, "may be brought" and in the latter "may be filed," and the word "thereon" is omitted.

The Constitution of 1820, Article 3, Section 35 provided for the revision of the Statutes every ten years, and asserted that "all the statute laws of a general nature, both laws civil and criminal, shall be revised, digested, and promulgated in such manner as the General Assembly shall direct; ..."

It appears that under this constitutional mandate, at each revising session thereafter until 1865, the legislature repealed all existing laws and re-enacted all laws that were included in the current revision. [Revised Statutes 1835, page 384, Section 53; Revised Statutes of Missouri, 1845, page 699, Section 20; Revised Statutes of Missouri, 1855, Vol. 2, page 1027, Section 20.] In 1865 (Title LI. Page 882, Chapter 224, Section 2) the legislature repealed all the statutes of a general public and permanent nature contained in the revision of the Eighteenth General Assembly of 1854 and 1855 and re-enacted in place thereof, the general statutes.

As stated, that revision contains a special chapter on "Divorce, Alimony, and Custody of Children" and another separate chapter on "Husband and Wife and the Rights of Married Women." These two chapters have been separate and distinct in all subsequent revisions. It would seem therefore that if, under the law prior to that time, a wife in a separate maintenance suit might file her petition in the county in which she lived and get service upon her husband in any other county in the state, that right was taken away by the legislature in 1865.

In discussing these two chapters [as they appeared in Revised Statutes 1899] in the case of Sharpe v. Sharpe, 134 Mo. App. 278, 114 S.W. 584, BLAND, P.J., in speaking for the court said in part:

"There being no common law jurisdiction in our circuit courts to dissolve the bonds of matrimony or to allow alimony, or to render judgment for maintenance to a wife living separate and apart from her husband, we must look to the statutes of our own State for the power to do either. This power is conferred by section 2922, chapter 20, and section 4327, chapter 51, Revised Statutes 1899... . All the legislation we have on the subject of divorce is grouped in chapter 20 Revised Statutes 1899, under the head of Divorce, Alimony and Custody of Children." The statutes relating to wife abandonment and maintenance are found in chapter 51, Revised Statutes 1899, under the title of "Married Women." The legislation in respect to both of these subjects is complete in itself and prescribes the mode of procedure. Neither subject has any reference to or bearing upon the other, and a divorce can only be obtained for one or more of the causes enumerated in the first section of chapter 20. An abandoned wife can procure an allowance to be paid to her for her support by her husband in no other manner or by any other procedure, than that prescribed in the first section of chapter 51. The procedure under both chapters is special and confined to a special object, therefore, it is beyond the power of the courts, or of the parties, by consent or otherwise, to engraft any other action, by way of counterclaim, or otherwise, upon a proceeding under either of these chapters not specially provided for therein. Nor can they commingle the procedure under one of the chapters with the procedure under the other, for they are distinct and separate provisions of the law, relating to separate and distinct subject-matters, and while the parties to a divorce suit may, by consent or by appearance, vest the court with jurisdiction of their persons they cannot, by consent or by waiver, confer jurisdiction of the RES. Jurisdiction of the subject matter can only be acquired by the filing of a petition in which is stated all the jurisdictional facts set forth in sections 2922, 2924, chapter 20. Sections 4327, 4327a, Mo. Ann. St (1906) comprehend all the legislation there is in respect to suits by the wife against her husband for maintenance."

Section 871 of the Revised Statutes of Missouri 1939 under Article entitled "Place of Bringing Actions" says:

"Suits instituted by summons shall, except as otherwise provided by law, be brought: First, when the defendant is a resident of the state, either in the county within which the defendant resides, or in the county within which the plaintiff resides and the defendant may be found; ..."

The above subdivision of this section was first included in an act of January 11, 1821 (1 Territorial Laws, p. 844, Sec. 8) and it has been in that form since that date. (Chapter 163, Section 1, Revised Statutes 1865.)

This section governs the place of bringing actions and was undoubtedly what was referred to by the legislature in Section 6 of Chapter 115 in 1865, now Section 3382, Revised Statutes.

We have been cited to the case of Silverman v. Silverman (Mo. App.), 95 S.W. (2d) 1237, which is the only case in this state squarely upon the proposition confronting us. While that court does not discuss Section 1515, Revised Statutes 1939, it arrived at the same conclusion that we have and that is that the general statute (Section 871) on the place of bringing actions applies to separate maintenance suits and not Section 1515 which now applies to divorce suits only. For these reasons, the learned trial court did not have jurisdiction of the person of the defendant and can not legally proceed to trial upon the proceedings instituted, or require the defendant to file an answer. The writ of prohibition should be made permanent. It is so ordered. Fulbright, P.J., and Blair, J., concur.

PETITION FOR WRIT OF PROHIBITION

The State of Missouri, at the relation and to the use of J.D. Rodgers, complains and alleges:

I. That on the 30th day of January, 1947, one Elsie Marie Rodgers filed in the Circuit Court of Greene County, Missouri, her petition against relator, J.D. Rodgers, for separate maintenance, and praying for maintenance and attorney fees for the prosecution of her action.

II. That on said 30th day of January, 1947, the Clerk of the Circuit Court of Greene County, Missouri issued a summons directed to the Sheriff of Lawrence County,...