Smoot v. Smoot

• Decision Date: 12 June 1933
• Parties: WILLIS L. SMOOT, APPELLANT, v. CARRIE K. SMOOT, RESPONDENT
• Court: Kansas Court of Appeals

61 S.W.2d 373

227 Mo.App. 1246

WILLIS L. SMOOT, APPELLANT, v. CARRIE K. SMOOT, RESPONDENT

Court of Appeals of Missouri, Kansas City

June 12, 1933

Appeal from Circuit Court of Jackson County.--Hon. Clarence A Burney, Judge.

REVERSED.

Judgment reversed.

W. Rea Heath for appellant.

I. B Smith and Arthur W. Edwards for respondent.

OPINION

TRIMBLE, J.

An appeal from an order of the circuit court setting aside a default judgment for divorce. The husband, Willis L. Smoot, filed suit for divorce against his wife, Carrie L. Smoot, on July 29, 1931, alleging indignities, and obtained service by publication on the ground she was a nonresident.

Judgment by default was rendered at the September term (September 25, 1931). The defendant's "Motion to Set Aside Default Decree" was not filed until the March term (April 19, 1932). Thus two terms, the November, 1931, and the January, 1932, terms of said court, had elapsed after the term at which the judgment was rendered and before the term at which the motion to set aside was filed.

At the hearing of the motion, evidence was heard pro and con, the counsel for plaintiff raising the objections that the motion to set aside contained "no facts justifying a reversal of the case" and that "the only way this question can be raised is by a suit in equity." The court took the matter under advisement until May 2, the 43rd day of the March term, 1932, on which the court entered the following order:

"Now on this day this case having been heretofore heard and by the court taken under advisement, and now the court being fully advised in the premises, of its own motion sets aside the default decree heretofore rendered in this case, for the reason the court believes this court had no jurisdiction in this case.

"Wherefore, it is ordered and adjudged by the court that the default judgment heretofore rendered in this case be and the same is hereby set aside and for naught held."

Whereupon the plaintiff in said divorce case appealed.

It would seem to be clear that as the action of the trial court in setting aside the default judgment of divorce was had subsequent to the expiration of the term at which the judgment was rendered, it had no jurisdiction to do so. [Conant v. Conant, 221 Mo.App. 300, 278 S.W. 90; State ex rel. Conant v. Trimble, 311 Mo. 128, 277 S.W. 916.] The judgment was not subject to a petition for review. Sec. 1361, R. S. Mo. 1929, 2 Mo. St. Ann., p. 1576, much less to such a belated motion to set aside.

But respondent contends that the motion to set aside calls in question the jurisdiction or power of the court to render the original decree of divorce. [Citing State ex rel. v. Hall, 246 S.W. 35, l. c. 37.] Whether this would or would not make any difference, we need not say.

If we understand the record correctly, the trial court, not being willing to act on the motion, ignored it as a foundation for the court's action, and set the decree aside of its own motion. There is no lack of jurisdiction of the...