State ex rel. Green v. James

• Decision Date: 08 July 1946
• Docket Number: No. 39733.,39733.
• Citation: 195 S.W.2d 669
• Parties: STATE EX REL. RALPH J. GREEN, Relator, v. JOHN R. JAMES, Judge of the Independence Division of the Jackson County Circuit Court.
• Court: Missouri Supreme Court

195 S.W.2d 669

STATE EX REL. RALPH J. GREEN, Relator, v. JOHN R. JAMES, Judge of the Independence Division of the Jackson County Circuit Court.

No. 39733.

Supreme Court of Missouri.

Court en Banc, July 8, 1946.

Prohibition.

PRELIMINARY RULE MADE ABSOLUTE.

Cyrus Crane, A.Z. Patterson and D.C. Chastain for relator.

(1) Prohibition is the proper remedy in this case and the court having issued its preliminary writ will follow the case to the end. State ex rel. Nolen v. Nelson, 310 Mo. 526, 275 S.W. 927; State ex rel. Duraflor Products Co. v. Searcy, 325 Mo. 335, 29 S.W. 83; State ex rel. Conran v. Duncan, 63 S.W. (2d) 135, 333 Mo. 673; State ex rel. v. Kline, 85 Mo. App. 628; State ex rel. Gary Realty Co. v. Hall, 322 Mo. 1118, 17 S.W. (2d) 935; State ex rel. v. Nortoni, 201 Mo. 1. (2) Special Judge Marshall had all of the powers of a regular judge and the same presumptions of regularity attached to his actions. State ex rel. v. Ross, 118 Mo. 23; State ex rel. McGaughey v. Grayson, 163 S.W. (2d) 335, 349 Mo. 700; Green v. Walker, 99 Mo. 66. (3) No present decree was attempted to be entered at the time of the alleged taking of the plaintiffs evidence in the Henderson law office. The judge's alleged statement was not an attempt to enter a decree of divorce but an indication of future action. Young v. Young, 165 Mo. 624. (4) The motion to vacate and the action of the respondent is based upon the claim that the judgment of divorce was not entered by a regular court. The respondent has no jurisdiction to determine the legal existence of the court that rendered the decree of divorce. State v. Searcy, 46 Mo. App. 421, 111 Mo. 20; State ex rel. General Motors Acceptance Corp. v. Brown, 48 S.W. (2d) 857, 330 Mo. 220. (5) Respondent has no jurisdiction to set aside the decree of divorce because the plaintiff brought the action and secured the decree of divorce and is bound thereby. Conflict of Laws, sec. 112, Restatement of Law, American Law Institute; 27 C.J.S. 815. (6) Nor can the plaintiff attack the decree of divorce because she is not aggrieved by the judgment rendered in her favor. Long Mercantile Co. v. Saffron, 104 S.W. (2d) 770; 2 Am. Jur. 944-5. (7) No appeal having been taken, the judgment cannot be modified, nor reviewed by writ of error coram nobis nor under Sec. 1267, R.S. 1939. State ex rel. Holtkamp v. Hartmann, 330 Mo. 386, 51 S.W. (2d) 22; State ex rel. v. Riley, 219 Mo. 667, 118 S.W. 647; Harrison v. Slayton, 49 S.W. (2d) 31; Jeude v. Sims, 258 Mo. 26, 166 S.W. 1048. (8) Neither is a motion to expunge the record proper. State ex rel. Manning v. Hughes, 351 Mo. 780, 174 S.W. (2d) 200; Bucholz v. Manzella, 158 S.W. (2d) 200. (9) The record entered by the court at Independence by the clerk imports absolute verity and is the only way the court can speak after the term expires. State ex rel. Conran v. Duncan, 333 Mo. 673, 63 S.W. (2d) 135; State ex rel. Robertson v. Sevier, 345 Mo. 274, 132 S.W. (2d) 691. (10) The motion to vacate the judgment fails to set out any facts showing the non-existence of a legal court. The place of hearing evidence was not jurisdictional and the record which shows that the judgment of divorce was entered in the courtroom at Independence cannot be assailed. Bouldin v. Ewart, 63 Mo. 330; Young v. Insurance Co., 269 Mo. 1, 187 S.W. 856; Laws 1943, p. 353; 43 A.L.R. 1516, 1525, 1535, 1556. (11) Plaintiff is not entitled to urge grounds of public policy or interests of the State for setting aside the decree rendered in her favor, since the motive for her motion is merely to obtain more property from the defendant. Crane v. Deacon, 253 S.W. 1068.

John G. Madden, Maurice M. Milligan, R.R. Brewster and Ralph M. Russell for respondent.

(1) Prohibition is not the proper remedy. The provisional rule of this court should be quashed, and the petition should be dismissed. State ex rel. v. Skinker, 106 S.W. (2d) 409; State ex rel. v. Stewart, 281 S.W. 768; State ex rel. Conran v. Duncan, 333 Mo. 673, 63 S.W. (2d) 135. (2) The court below has jurisdiction to entertain the motion to vacate. The motion to vacate is a proper remedy. State v. Searcy, 46 Mo. App. 421; State ex rel. v. Brown, 330 Mo. 220, 48 S.W. (2d) 857; Crabtree v. Aetna Life Ins. Co., 111 S.W. (2d) 103; Bucholz v. Manzella, 158 S.W. (2d) 200; Jeude v. Sims, 258 Mo. 26, 166 S.W. 1048; State ex rel. v. Gideon, 77 S.W. (2d) 647; Restatement of the Law, Conflict of Laws, sec. 81g; Hartle v. Hartle, 184 S.W. (2d) 786; Grenzebach v. Grenzebach, 118 Mo. App. 280; 94 S.W. 567; Clinton v. Cornell, 132 Pac. (2d) 340; Secs. 1524, 1525, R.S. 1939; State ex rel. v. Hall, 246 S.W. 35; State ex rel. v. Gideon, 77 S.W. (2d) 647; Nave v. Nave, 28 Mo. App. 505; Cox v. Cox, 115 S.W. (2d) 104; State ex rel. v. Hughes, 174 S.W. (2d) 200; State ex rel. Conran v. Duncan, 63 S.W. (2d) 135; Restatement of the Law, Judgments, sec. 12; State ex rel. v. Harris, 67 S.W. (2d) 981; State ex rel. v. Ryan, 67 S.W. (2d) 983. (3) The judgment sought to be vacated is void. Constitution of Missouri (in force at time of proceeding below) (Art. VI, Sec. 1, Sec. 22); Act of April 12, 1905, Laws 1905, pp. 121, 122; Secs. 2165, 2181, R.S. 1939; Restatement of the Law, Conflict of Laws, secs. 429g and 432b; Constitution of Missouri, Art. II, Sec. 10; R.S. 1899, sec. 1597, now Sec. 2007, R.S. 1939; 7 R.C.L., sec. 6, pp. 977-8; 7 R.C.L., sec. 2, p. 973; State ex rel. Henderson v. County Court of Boone County, 50 Mo. 317; State ex rel. v. Ross, 118 Mo. 23; State v. Horn, 336 Mo. 524, 79 S.W. (2d) 1044; State ex rel. Ballew v. Woodson, 161 Mo. 444, 61 S.W. 252; Parsons v. Harvey, 221 S.W. 21; Holman v. Hogg, 83 Mo. App. 370; Mason v. Woerner, 18 Mo. 566; Rhodes v. Bell, 230 Mo. 138; State v. Eaton, 191 Mo. 151; State v. Elschinger, 223 Mo. 53; State ex rel. Chick v. Davis, 273 Mo. 660; Jones v. Jones, 188 Mo. App. 220; State ex rel. McMahon v. Huck, 203 S.W. 484; Stovall v. Emerson, 20 Mo. App. 322; Ex parte Branch, 63 Ala. 383; Magna Charta; 15 C.J. 854; State of Wisconsin ex rel. Nelson v. Grimm, 263 N.W. 583, 102 A.L.R. 220; Commonwealth v. Handren, 158 N.E. 894; Thompson v. Commonwealth, 99 S.W. (2d) 705; 15 C.J.S. 223, p. 877; Jones v. State, 107 So. 8; Bankers Health & Life Ins. v. James, 164 S.W. 684; Rouff v. Boyd, 16 S.W. (2d) 403; Glasscox v. Pickens, 73 S.W. (2d) 992; City of Clinton v. Cornell, 132 Pac. (2d) 340; Bouldin v. Ewart, 63 Mo. 330; Young v. Insurance Co., 269 Mo. 1, 187 S.W. 856; United States v. Turner, 47 F. (2d) 86; Sorenson v. Sutherland, 27 F. Supp. 44.

HYDE, J.

Prohibition to prevent ruling on a motion to vacate a divorce decree.

The record sought to be vacated is, as follows:

                  "77th day of the June Term, 1942
                               "Saturday, August 29th
                

"Court met pursuant to adjournment, Harold Marshall, Special Judge, sitting for the Honorable Marion D. Waltner. Present same as yesterday. Frances Clark Green, Plaintiff, vs. Ralph J. Green, Defendant. No. 99106.

"Now on this day comes plaintiff in person and by attorney and defendant appearing by attorney files Entry of Appearance and Answer in the above entitled cause.

"This cause now coming on for trial is submitted to the court upon the pleadings and after having heard the evidence the court finds that the allegations in plaintiff's petition are true; that plaintiff is the injured and innocent party and entitled to the relief prayed.

"Wherefore, it is adjudged and decreed by the Court that the bonds of matrimony heretofore contracted between plaintiff and defendant be and the same are hereby dissolved and for naught held and plaintiff forever freed from the obligations thereof.

"It is further ordered and adjudged by the court that the plaintiff be and she is hereby restored to her former name of Mrs. William D. Clark.

"It is further ordered and adjudged by the court that the costs herein be paid by, and that execution issued therefor against the defendant."

The motion to vacate was filed at the June Term 1944 by the successful plaintiff in the divorce action. It alleged that no summons was issued or service had upon the defendant; and that no testimony was heard in said cause at the courthouse at Independence in the courtroom therein established for the trial of causes in said Independence Division. It is further alleged that the special judge "left the courtroom in the Courthouse at Independence, Missouri, which was the regularly designated place for holding Court and for the trial of causes in the Independence Division of the Circuit Court of Jackson County, Missouri, and went therefrom to the law office of Henderson, Henderson & Swofford, in the Scarritt Building located at Ninth and Grand Avenue in the City of Kansas City, Missouri; that the above entitled cause was, in said law office, called for trial by the said Harold Marshall; that there were present in said law office at said time and during the purported trial of said cause the said Harold Marshall, the acting Court Reporter, the plaintiff and counsel representing both plaintiff and defendant; that no other Court official from the Independence Division of the Circuit Court of Jackson County, Missouri, was in attendance or present in said law office; that at said time and place the defendant, by his counsel attempted to file an alleged Entry of Appearance and an Answer with the said Harold Marshall; that thereafter Frances Clark Green, the plaintiff in the above entitled action, was sworn and testified; that said plaintiff was the only witness at said hearing or pretended trial of said cause; that at the conclusion of her testimony, the said Harold Marshall attempted to grant the plaintiff a divorce as prayed for in her petition."

The motion also alleged that the petition for divorce had been filed on August 28, 1942; and that the following court rules were then in effect: "(a) No divorce case shall be tried before the Term to which it is by the statutes returnable; (b) Until further order, no divorce case will be...