State ex rel. Miller v. Jones

• Decision Date: 19 September 1961
• Docket Number: No. 30789,30789
• Citation: 349 S.W.2d 534
• Parties: STATE of Missouri ex rel. Georgia L. MILLER, appearing specially, Relator, v. Honorable Douglas L. C. JONES, Judge of the Circuit Court of St. Louis County, Respondent.
• Court: Missouri Court of Appeals

Page 534

349 S.W.2d 534

STATE of Missouri ex rel. Georgia L. MILLER, appearing specially, Relator, v. Honorable Douglas L. C. JONES, Judge of the Circuit Court of St. Louis County, Respondent.

No. 30789.

St. Louis Court of Appeals, Missouri.

Sept. 19, 1961.

William H. Wyne, Jr., Wyne & Delworth, Clayton, for relator.

Edgar T. Farmer, Fordyce, Mayne, Hartman, Renard & Stribling, St. Louis, for respondent.

BRADY, Commissioner.

This is an original proceeding brought by Georgia L. Miller, who appears specially for this purpose only, seeking this court's writ to prohibit the respondent from proceeding to trial upon a petition for divorce filed in the circuit court of St. Louis County by her husband, Romie H. Miller. Upon the petition for the writ being filed, this court waived the five days' notice provided by Rule 83.22, Missouri Rules of Civil Procedure, V.A.M.R., and granted the relator five days to file her suggestions in support of her petition, and granted respondent time to file his suggestions thereafter. Upon these suggestions being filed, we duly considered the matter and ordered our preliminary writ to issue, prohibiting any further proceedings in the trial court until our final determination of the matter. Respondent waived service and filed his return, whereupon we granted relator time to plead to the return and respondent time to reply to that pleading. These pleadings being filed, we set the case for our May docket and upon motion of all the parties granted leave to submit the matter upon the pleadings and suggestions filed.

The petition for the writ states that the relator is a resident of the State of Colorado and appears specially only for the purpose of securing the writ; that she filed suit for divorce against Romie H. Miller, her husband, on August 15, 1960, in the District Court of Jefferson County, Colorado; that Romie H. Miller was personally served by the sheriff of St. Louis County on August 18th of that year; that on the same day he was served, Romie H. Miller filed suit in the Circuit Court of St. Louis County, Missouri, against the relator; that on that day service by mail was ordered but that service was not had; that on September 9, 1960, service by publication was ordered but failed; and that on October 4, 1960, the relator was finally served by mail. The petition further alleged that relator, by her attorney, entered a special appearance in the Missouri action for the purpose of filing a motion to dismiss upon the grounds that the Colorado court had acquired prior jurisdiction and, in support of that motion, attached Exhibits A and B thereto, Exhibit A being a true copy of the complaint filed in the Colorado court together with the clerk's certificate that such action was filed on August 15, 1960, and Exhibit B being a true copy of the return of service of summons together with a certificate from the clerk that such service was had on August 18, 1960, by the sheriff of St. Louis County, all of which exhibits are incorporated into the petition for our writ by specific reference thereto; and that this motion to dismiss was overruled and the cause set for hearing. The petition also alleged that relator has no adequate remedy at law; that the action of the trial court in proceeding on the Missouri case would be in excess of the circuit court's jurisdiction, and concluded by praying for the issuance of our writ to prohibit respondent from so proceeding.

The respondent's return was directed to the petition for the writ, instead of to the writ, and admits all the allegations thereof except that it denies the prior jurisdiction of the Colorado court, that the act of proceeding with the Missouri case would be without, or in excess of, respondent's jurisdiction, and that the relator has no adequate remedy at law. The return further stated that while the Colorado court 'may have acquired a jurisdiction herein which was prior in time to that of the respondent's Court, the Colorado Court did not acquire a jurisdiction which is superior to that of the Courts of the State of Missouri * * *' nor such a jurisdiction that would negate the right of respondent to proceed with the same subject matter; that the defense of a prior suit is not applicable 'to a situation such as the instant controversy wherein the second suit takes the form of cross-litigation * * *'; that 'The decision as to whether or not respondent should or should not have entertained the instant litigation rests solely upon the doctrine of comity and thus is a matter to be determined within the discretion of the respondent', and as such is an act within his lawful judicial powers. The return also alleges that 'complete relief' can 'only be afforded by the Courts of the State of Missouri.'

The relator filed what is denominated 'Relators' Answer to Respondent's Return', and the respondent filed what is denominated 'Respondent's Reply', but neither paper can qualify as a pleading. See Section 530.050 RSMo 1959, V.A.M.S. That section of our statutes provides:

'The defendant may direct a motion to the petition on make return to the preliminary order, and when the return is made the plaintiff may plead thereto, if desired, by way of reply, within such time as the court may direct.'

It is obvious that what relator denominated as her 'Answer' is the reply provided for by Sec. 530.050, supra. However, neither of these papers reach the distinction of pleadings. They are narrative in form and consist completely of argument. Neither paper admits or denies in proper form any portion of the pleading to which it should be directed, nor does either contain any allegations, in proper pleading form, of any new matter. It should here be noted that it is this court's practice, as it is of the Supreme Court of this state, to serve notice of such writ as herein applied for upon counsel seeking to uphold the action sought to be prohibited, and for such counsel to represent also the judge or court against whom the writ is sought, State ex rel. Siegel v. Strother, 365 Mo. 861, 289 S.W.2d 73. If counsel are interested in the proper pleadings in a prohibition matter, they are easily discoverable. See Sections 530.040 and 530.050 RSMo 1959, V.A.M.S. Since counsel for the respondent did not direct a motion to the petition, but elected to make a return in which he treated the petition as the preliminary order, and since counsel for relator did not file a proper reply to that return, the matter before us is delineated by the petition and the return. We will treat 'Relators' Answer to Respondent's Return' and 'Respondent's Reply' as additional suggestions filed in support of the position of the relator and the respondent respectively.

Prohibition is a prerogative writ primarily preventive in character, the function of which is to prevent the judicial person or body to which it is directed from acting in a case or proceeding in which it has no jurisdiction, or acting in excess of its jurisdiction. State ex rel. City of Mansfield v. Crain, Mo.App., 301 S.W.2d 415. Its issuance in a given case is addressed to our discretion, State ex rel. Industrial Properties, Inc. v. Weinstein, Mo.App., 306 S.W.2d 634; State ex rel. St. Louis County Transit Co. v. Walsh, Mo.App., 327 S.W.2d 713. In a prohibition proceeding, we are concerned only with the question of jurisdiction. State ex rel. Walker v. Crouse, 240 Mo.App. 389, 205 S.W.2d 749; Doyne et al. v. Saettele et al., 8 Cir., 112 F.2d 155. In a case somewhat similar to the instant case but involving a question of jurisdiction as between two circuit courts within this state, we held that prohibition was the proper remedy, State ex rel. Dunphy v. Eversole, Mo.App., 339 S.W.2d 506, and we think it the proper remedy in the instant case to test the jurisdiction of the respondent. Cutten v. Latshaw, Mo.App., 344 S.W.2d 257.

The general rule throughout the United States is that marriage is a contract and that, as well, it is a status or legal condition, Williams v. State of North Carolina (I), 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273; and that each state has a legitimate and rightful concern with the marital status of persons domiciled within its borders. Howey v. Howey, Mo.Sup., 240 S.W. 450, certiorari denied 260 U.S. 730, 43 S.Ct. 92, 67 L.Ed. 485; Williams v. North Carolina (I), supra. An action for absolute divorce is not to be regarded as an ordinary adversary proceeding. Williams v. State of North Carolina (II), 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577. It is an action in personam insofar as it relates to certain contractual aspects of the marriage such as the right to alimony, etc., and it is a proceeding in rem, or at least quasi in rem, insofar as it relates to the dissolution of the marital status of parties. Howey v. Howey, supra; Gould v. Crow, 57 Mo. 200; Williams v. State of North Carolina (I), supra; Williams v. State of North Carolina (II), supra. As has been pointed out by a distinguished author, see Nelson, 2d Ed., Divorce and Annulment, Vol, 2, Sec. 21.01, at page 620, 'The matter of jurisdiction in divorce cases is complicated by the fact that the usual present-day divorce suit is not merely a proceeding to terminate a marriage.' Most such petitions contain other features, the inclusion of which is specifically or impliedly authorized by statute; such as, but not limited to, those stated in this case for custody of the minor children, alimony, and support for the children. 'Jurisdiction to grant some such relief does not necessarily imply jurisdiction to grant all of it.' Nelson, supra. So it is that in this case neither the Colorado District Court nor the Missouri Circuit Court, under the present state of the facts, could dispose of all the issues in either case. The relator seeks a divorce, alimony custody of the minor children and support for them in the Colorado action. There is no question but that the Colorado court could award a divorce but since the service obtained...