Smith v. Smith
| Decision Date | 31 October 1854 |
| Citation | 20 Mo. 166 |
| Parties | SMITH, Appellant, v. SMITH, Respondent. |
| Court | Missouri Supreme Court |
1. The provision in the act regulating practice in chancery, (R. C. 1845,) that a decree rendered against a party who has not been summoned and has not appeared, may be set aside within a time limited, applies to a decree for a divorce. (SCOTT, J., dissenting.)
Appeal from St. Louis Circuit Court.
The case is sufficiently stated in the opinion of the court. It was argued by Mr. E. Casselberry, for appellant, and Mr. Barton Bates, for respondent.
In a proceeding commenced in March, 1849, Smith, the husband, obtained a decree against his wife, divorcing her from the bonds of matrimony, without service of process upon his wife, and without her appearance in the cause. In this petition, she is alleged to be a non-resident, and publication was made against her as such. This, as a proceeding instituted before the present code of practice went into effect, was a proceeding in chancery. The act concerning divorces provides: “That the Circuit Court, sitting as a court of chancry, shall have jurisdiction in all cases of divorce and alimony or maintenance, and the like process and proceedings shall be had in said causes as are had in other causes on the equity side of the court.” (R. C. 1845, p. 426.) The act regulating practice in chancery (art. 6, secs. 1, 2, 3 and 4, R. C. 1845, p. 851), provides that, when a decree has been rendered in a chancery cause against a defendant who has not been summoned and has not appeared, such final decree may be set aside, if the defendant shall appear, and by bill of review, verified by affidavit, show cause for setting it aside as against equity. The time for filing such a bill of review is limited to one year after the service of notice of the decree upon the defendant, or to five years after the date of the decree, where notice is not given. The bill of review is required either to show that there is no equity in the original bill, or to contain such denials or allegations as amount to a defence upon the merits. When such bill is filed within the time, and containing the requisite denials or allegations, the decree is set aside, the defendant in the original cause answers the original bill, and the case proceeds as other cases.
The wife, in the present case, filed her bill within the time limited by the statute, denying all the material allegations in her husband's original bill, and praying that the decree rendered against her be set aside and that she be permitted to answer. The Circuit Court set aside the decree, and gave the leave to answer. The answer was filed, showing, on her part, ground for a divorce and praying for a divorce. The husband refused to proceed with the case. The court heard the cause, dismissed the bill of the husband, and decreed a divorce in favor of the wife, with alimony. From this decree he has appealed.
1. As nothing appears before this court by any exception taken to any proceeding, we act only upon the questions arising upon the records proper. The statute which governs the case is clearly that which applies in all chancery cases under the code of 1845, and the review is to be applied for within the time and in the manner in that act provided. The section which requires the petition or bill of review to show that there is no equity in the original bill, or to contain such denials or allegations as amount to a defence upon the merits, substantially prescribes the statements of the bill upon which the decree is to be set aside, and the defendant in the original cause permitted to answer. We have no occasion to examine the nature and objects of, and the modes of proceeding upon, a bill of review in the general chancery practice. The statute allows a decree to be obtained against a defendant who has never been summoned, and has never appeared in the suit, and then provides a mode in which such defendant may be admitted to defend himself against the suit, even after a decree is rendered. It appears in the record that the husband, after obtaining the decree of divorce, was married to another woman, and this is urged as a reason against setting aside...
To continue reading
Request your trial
-
Dorrance v. Dorrance
...and Bates, Blodgett, Williams & Davis for respondent. (1) The Missouri decisions settle every proposition urged by the appellant. Smith v. Smith, 20 Mo. 170; DeGraw DeGraw, 7 Mo.App. 131; Childs v. Childs, 11 Mo.App. 395; Salisbury v. Salisbury, 92 Mo. 683; Nave v. Nave, 28 Mo.App. 505; Han......
-
Dorrance v. Dorrance
...conclusion that it is within the statute and clearly prohibited. It was the evident purpose of the Legislature, with the example of Smith v. Smith, supra , before it, to deny a review in all cases whether based upon a charge of fraud or not. The breaking up of second marriage relations, whi......
-
DeGraw v. DeGraw
...under any circumstances, there should be any interference with the parties after the courts have granted a divorce. Scott, J., in Smith v. Smith, 20 Mo. 166. And the jurisdiction has been denied, from grounds of public policy, in cases of the grossest and most cruel fraud. Parish v. Parish,......
-
Salisbury v. Salisbury
...case of Childs v. Childs that Judge Gill followed in dismissing appellant's bill. The doctrine there upheld is also supported in Smith v. Smith, 20 Mo. 166. v. Parish, 9 Ohio St. 534; Greene v. Greene, 2 Gray, 361; Bishop on Mar. & Div., sec. 753; DeGraw v. DeGraw, 7 Mo.App. 121; Lucas v. L......