State ex rel. Higginbotham v. Hughes

• Decision Date: 26 November 1941
• Docket Number: 37071
• Citation: 156 S.W.2d 650,348 Mo. 1073
• Parties: State of Missouri at the relation of Revell Higginbotham, also known as Revell Bell, non compos mentis, by Henry C. Kirchner, his guardian, Relator, v. William C. Hughes, William Dee Becker and Edward J. McCullen, Judges of the St. Louis Court of Appeals
• Court: Missouri Supreme Court

156 S.W.2d 650

348 Mo. 1073

State of Missouri at the relation of Revell Higginbotham, also known as Revell Bell, non compos mentis, by Henry C. Kirchner, his guardian, Relator, v. William C. Hughes, William Dee Becker and Edward J. McCullen, Judges of the St. Louis Court of Appeals

No. 37071

Supreme Court of Missouri

November 26, 1941

Rehearing Denied December 16, 1941.

Writ quashed.

N Murry Edwards and Sarsafield A. Naughton for relator.

(1) On a writ of certiorari to an appellate court the Supreme Court will eliminate a conflict between the Court of Appeals' opinion and the latest ruling of the Supreme Court on the subject, either as to a general principle of law announced or as to a ruling under a like, analogous or similar state of facts; the purpose of certiorari being to secure uniformity in opinions and harmony in the law. State ex rel. Kroger Grocery & Baking Co. v. Haid, 323 Mo. 9, 18 S.W.2d 478; State ex rel. Vulgamott v. Trimble, 300 Mo. 92, 253 S.W. 1014. (2) Respondents' opinion in holding that a motion to set aside a judgment filed thirty days after the rendition of said judgment and not passed upon at the judgment term is record proper and before an appellate court for review, is in direct conflict with the last controlling decisions, ruling and holdings of the Supreme Court of Missouri. Louden v. King, 22 Mo. 336; Daggs v Smith, 193 Mo. 494; City of Tarkio v. Clark, 186 Mo. 285; Chouteau v. Nuckols, 33 Mo. 148; Clarkson v. Stanchfield, 57 Mo. 573; Maston v Ireland, 8 S.W.2d 900; State ex rel. v. Trimble, 277 S.W. 916. (3) Respondents' opinion in holding that a bill of exceptions was properly filed and allowed, even though no motion for a new trial had been filed and no appeal allowed at the term at which judgment was rendered, and that, therefore, the original petition and appellant's untimely motion to set aside were before the court for review, is in direct conflict with the last controlling decisions, rulings and holdings of this court. Jefferson City v. Wells, 263 Mo. 231; Spotts v. Spotts, 55 S.W.2d 977; Syz v. Milk Wagon Drivers' Union, 18 S.W.2d 441. (4) Respondents' opinion in holding that the original petition (which was abandoned upon the filing of an amended petition) constituted a part of the record proper is in direct conflict with the last controlling decisions, rulings and holdings of the Supreme Court of Missouri. (a) Respondents' opinion in overruling the motion filed by defendant-respondent in the Court of Appeals to strike out petition, etc., included and filed in so-called transcript of supplemental record proper and in its opinion reviewing and considering the original petition, which had not been offered in evidence and preserved by a legal and proper bill of exceptions, is in direct conflict with the last controlling decisions, rulings and holdings of this court, which are as follows, to-wit: Spotts v. Spotts, 55 S.W.2d 977; Boyd v. St. Louis Brewing Assn., 5 S.W.2d 46; Wood v. Wells, 270 S.W. 332; Lyons v. Natl. Surety Co., 147 S.W. 778, 243 Mo. 607. (5) Respondents' opinion in holding that an appeal was properly taken at a term subsequent to the term at which judgment was rendered, even though appellant's motion to set aside was filed out of time and not ruled upon at the judgment term, is in direct conflict with the last controlling decisions, rulings and holdings of this court. Sec. 1020, R. S. 1929; State ex rel. v. Trimble, 277 S.W. 916. (6) Respondents' opinion in overruling the motion to dismiss appeal filed by defendant-respondent in the Court of Appeals and in holding that appellant had a right to appeal from the order overruling appellant's motion to set aside judgment filed out of time and overruled at a subsequent term is in direct conflict with the last controlling decisions, rulings and holdings of this court. Bonfils v. Martin, 253 S.W. 982; Pence v. K. C. Laundry Service, 69 S.W.2d 633; Bonanomi v. Purcell, 230 S.W. 120; State ex rel. v. Trimble, 62 S.W.2d 473.

OPINION

Leedy, J.

Certiorari to quash the opinion of the St. Louis Court of Appeals in a case styled "Revell Higginbotham, also known as Revell Bell, non compos mentis, by Henry C. Kirchner, his guardian, v. Juretta Higginbotham," reported in 146 S.W.2d 856, which was a suit for divorce wherein relator (the husband) was plaintiff. The facts, as found in the opinion, are as follows: Plaintiff's petition alleged he had been duly adjudged non compos mentis on March 16, 1926, by the Probate Court, and the appointment of Henry C. Kirchner as his guardian. Said petition was signed "Revell Higginbotham by Henry C. Kirchner, guardian," and the statutory affidavit was made by said guardian. Personal service on defendant. At the return term, defendant having made default, an interlocutory decree was entered. Thereafter, and during the same term of court, plaintiff filed an amended petition (containing substantially the same allegations as the original), which was signed by Revell Higginbotham, plaintiff, and accompanied by a statutory affidavit made by said Revell Higginbotham, and also one by Henry C. Kirchner as guardian, and final decree of divorce granted. No motion for new trial or in arrest, nor further steps of any kind until thirty days thereafter, when, at the same (judgment) term, defendant filed a motion to set aside the decree for the reason the petition on its face disclosed that plaintiff was a person of unsound mind, and that the court had no jurisdiction to hear the cause and grant the divorce. Said motion was continued to the next term of court, when it was again continued; at the second succeeding term, it was heard and overruled, and defendant appealed.

The St. Louis Court of Appeals held that, as it appeared from the record proper, plaintiff was incapable of maintaining the action (because of his insane condition), the decree was void ab initio, and so reversed the same. Relator does not assert that this court has ever announced any different or contrary rule with respect to the maintenance of such a suit by one under the disability mentioned, so what may be called the principal holding of the opinion stands unchallenged in this proceeding.

Relator assigns conflict with controlling decisions of this court in holding, (1) that the motion to set aside the judgment (filed thirty days after the rendition...