Smith v. Smith

• Decision Date: 27 May 1912
• Citation: 148 S.W. 115,164 Mo.App. 53
• Parties: SIGEL E. SMITH, Appellant, v. BEATRICE M. SMITH, Respondent
• Court: Kansas Court of Appeals

148 S.W. 115

164 Mo.App. 53

SIGEL E. SMITH, Appellant, v. BEATRICE M. SMITH, Respondent

Court of Appeals of Missouri, Kansas City

May 27, 1912

Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.

AFFIRMED.

Judgment affirmed.

H. H Blanton for appellant.

Hughes & Whitsett for respondent.

OPINION

JOHNSON, J.

July 26, 1910, plaintiff instituted a suit for divorce in the circuit court of Jackson county alleging facts which, if true, would entitle him to a decree. August 5, 1910, defendant filed an answer putting in issue the allegations of the petition and also a cross-bill alleging facts which, if true, would entitle her to a divorce. March 3, 1911, plaintiff filed his reply and on March 23, 1911, the cause came on for hearing and the following decree was rendered:

"Now on this 23d day of March, 1911, this cause coming on regularly for hearing, the plaintiff appearing in person and by attorneys H. H. Blanton, C. B. Adams, and the defendant, although duly summoned, not appearing either in person or by attorney, and this cause being submitted to the court on the pleadings and evidence, the court having duly considered the same, finds all the issues arising under the petition, and defendant's cross-bill and plaintiff's reply thereto, for the plaintiff and against the defendant, and that plaintiff is the innocent and injured party and entitled to be divorced from defendant, and the court, with the consent of the plaintiff, further finds that defendant is entitled to have her former name, Beatrice M. Mitchell, restored to her.

"Wherefore, it is by the court ordered, adjudged and decreed that the bonds of matrimony heretofore existing between plaintiff and defendant be and the same are hereby forever dissolved, and that defendant's former name, Beatrice M. Mitchell, be restored to her, and that all costs of this cause be taxed against defendant, and that execution issue therefor."

Two days after this decree was rendered and at the same term of court defendant filed a motion designated a "motion to set aside decree of divorce" in which she asked that a new trial be granted on the ground of fraud and deceit practiced on her by plaintiff by which she was prevented from appearing at the trial and presenting her side of the case. The facts alleged, if true, show that she was the innocent victim of a palpable fraud. Plaintiff filed a "plea to the jurisdiction of the court" which, treating defendant's motion as a petition for review of a judgment attacked the jurisdiction of the court to entertain the motion on the ground that section 2381, Revised Statutes 1909, prohibits the trial court from setting aside a judgment for divorce on petition for review.

The court heard these motions April 8, 1911, and entered an order and judgment sustaining defendant's motion and granting a new trial. A motion to set aside this order then was filed by plaintiff and was overruled and an appeal, was allowed plaintiff April 8, 1911. All of these proceedings were had at the term at which the judgment for divorce was rendered.

The purpose and function of section 2381, Revised Statutes 1909 are explained in the cases cited in the brief of plaintiff. [Smith v. Smith, 20 Mo. 170; Childs v. Childs, 11 Mo.App. 395; Salisbury v. Salisbury, 92 Mo. 683, 4 S.W. 717; Nave v. Nave, 28 Mo.App. 505; Hansford v. Hansford, 34 Mo.App. 262; Richardson v. Stowe, 102 Mo. 33, 14 S.W. 810; Smith v. Smith, 48 Mo.App. 612; Cole v. Cole, 89 Mo.App. 228; Elliott v. Elliott, 135 Mo.App. 42, 115 S.W. 486; Lieber v. Lieber, 239 Mo. 1, 143 S.W. 458; Dorrance v. Dorrance, pending Supreme Court Mo.] And if defendant's motion should be regarded either in form or substance as a petition for review we...