State ex rel. Fromme v. Harris
| Citation | 194 S.W.2d 932 |
| Decision Date | 13 May 1946 |
| Docket Number | 20746 |
| Parties | STATE ex rel. FROMME v. HARRIS, Circuit Judge, et al |
| Court | Court of Appeals of Kansas |
'Not to be published in State Reports.'
Julius M. Meyerhardt, of Kansas City, for relator.
Harding Murphy, Tucker, of Kansas City, for respondent Lina Alice Fromme.
This is an original proceeding in prohibition, wherein relator seeks to prevent the respondent, The Honorable Brown Harris, Judge of the Circuit Court of Jackson County, from exercising jurisdiction in a divorce action, on the ground that there is a prior action between the same parties involving the same subject matter in the Circuit Court of Cole County.
The facts, as disclosed by the pleadings, show that the relator and Lina Alice Fromme were married on November 2nd, 1922, and continued to live together as husband and wife until on or about September 7, 1945; that of this marriage two daughters were born; that on October 8, 1945, relator instituted a divorce proceeding against the said Lina Alice Fromme in the Circuit Court of Cole County; that personal service of said petition was had on the defendant therein on October 9, 1945.
Fifteen days later, on October 23, 1945, Lina Alice Fromme filed a petition for divorce in the Circuit Court of Jackson County, against the relator, and personal service of said petition was had upon him on October 24, 1945. On November 8, 1945, Lina Alice Fromme filed in the Circuit court of Cole County, in the action therein pending, a motion to quash the summons and dismiss the petition on the ground that the plaintiff therein, relator herein, was not a resident of Cole County at the time he filed his petition.
On November 13, 1945, Lina Alice Fromme served on the relator in the action pending in the Circuit Court of Jackson County, a motion for temporary alimony, suit money and allowance for the support of the two children, and served notice upon relator that the motion would be called up for hearing on November 19, 1945 in Division No. 4 of said court presided over by the Honorable Brown Harris, respondent herein.
On November 19, 1945, relator filed in Division No. 4 of the Circuit Court of Jackson County, his motion to quash the summons, and to dismiss the plaintiff's petition and her motion for temporary alimony filed by Lina Alice Fromme, on the ground that there was a similar action pending between the same parties in the Circuit Court of Cole County.
Thereafter, respondent, Judge, notified the parties that on November 26, 1945, he would hear, consider and pass upon relator's motion to dismiss, as well as the motion of Lina Alice Fromme for temporary alimony, suit money and allowance for the support of the children; but that it would be necessary to first determine 'questions of fact concerning the proper residence of the plaintiff and the defendant', which he would determine on the same day.
Thereafter, relator filed in this court an application for a writ of prohibition. A temporary writ was issued by this court, and the case now comes up on the question as to whether the temporary writ shall be made permanent.
The relator insists that the Circuit Court of Cole County, having first obtained jurisdiction over the subject matter, has jurisdiction to proceed to a final judgment without interference from any other court having concurrent jurisdiction. This contention must be sustained. It is well settled that, where two actions involving the same subject are brought between the same parties to test the same right in different courts having concurrent jurisdiction thereof the first court...
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