State ex rel. Murphy v. Aronson
| Citation | 330 S.W.2d 140 |
| Decision Date | 15 December 1959 |
| Docket Number | No. 30312,30312 |
| Parties | STATE of Missourl ex rel. Bernard W. MURPHY, Relator, v. Hon. Robert L. ARONSON, Circuit Judge, Respondent. |
| Court | Missouri Court of Appeals |
Richard M. Stout, Philip M. Sestric, St. Louis, for relator.
Everett Hullverson, Orville Richardson, James E. Hullverson, William Mason, Jr., St. Louis, for respondent.
This is an original proceeding in prohibition. Relator prays for a permanent writ prohibiting respondent, Hon. Robert L. Aronson, a Judge of the Circuit Court of the City of St. Louis, from proceeding to hear and determine a motion for alimony pendente lite filed in a divorce action, wherein relator was plaintiff, and to prohibit respondent from proceeding further in said cause. It is the contention of the relator that an order of the respondent setting aside a divorce decree previously entered is null and void.
On August 29, 1958, relator instituted a suit for divorce against his wife, Rosa Lee Murphy. Morris B. Kessler was the attorney for the relator in the divorce proceeding. On September 19, 1958, the defendant, Rosa Lee Murphy, entered her appearance in said divorce action and waived the issuance and service of summons upon her. She filed no answer. On October 21, 1958, an order of default and inquiry was entered and the case was set down for hearing on November 5, 1958. On the last mentioned date the divorce suit was heard before the respondent sitting as Judge of one of the Domestic Relations Divisions of the Circuit Court of the City of St. Louis. The relator appeared with his witnesses but defendant failed to appear. After hearing the relator and his witnesses, the respondent entered a judgment and decree of divorce in favor of relator. No motion for new trial was filed. Up to this point there is no dispute as to the facts. After the decree of divorce was entered the record presents only one fact issue. This involved what was said in a telephone conversation between the respondent and Morris B. Kessler, attorney for the plaintiff at the divorce hearing. At the time of the oral argument in this court it was stipulated by the attorneys for relator and respondent that the fact issue be submitted on the affidavits of respondent and Morris B. Kessler, which had been executed by them and filed in this proceeding.
We will state verbatim the portions of the affidavits covering the respective versions of the conversation that took place between respondent and Morris B. Kessler and will state verbatim other portions of the affidavits where deemed necessary. The balance of the respective affidavits will be summarized.
In the affidavit executed and filed by respondent, Hon. Robert L. Aronson, after reciting the steps leading to the entry of the decree of divorce, he stated that after recessing court during the late morning of December 2, 1958, he found a note on his desk asking him to call a certain man at the telephone number indicated on the message, which proved to be the number of the Streckfus Steamers. The respondent further stated that the man told him relator, Bernard W. Murphy, plaintiff in the divorce action, worked for the Streckfus Steamers; that Mr. Murphy had not told them of the divorce suit; that Mrs. Murphy had visited their office and had asked them questions about the divorce suit 'that she heard he had instituted against her'; that they (the people at the Streckfus Steamers) 'were fearful that Mrs. Murphy did not understand whatever was happening and that they feared perhaps she was being imposed upon.' Respondent further stated that he told the person he did not recall the case and would send for the file and call him again. Respondent then stated that after examining the file he called the man again and told him the date of the entry of the decree and asked the man if Mrs. Murphy had an attorney and was told that so far as the man knew Mrs. Murphy had no attorney. Respondent then stated in his affidavit:
'that after speaking to this man at Streckfus Steamers Company, I called Mr. Morris B. Kessler, the attorney for plaintiff, on the telephone at his office, this being done during the same afternoon of Tuesday, December 2; * * * I told Mr. Kessler that I had received this call from a man at Streckfus Steamers, but without mention of the name of the man; and that the heads of that company were concerned that Mr. Murphy might be imposing on his wife because she seemed to them not to be capable of understanding what had happened in the case and that I felt it my duty before the expiration of thirty days from the time of the entry of decree, to set aside the decree and resume the matter under submission; then if Mrs. Murphy obtained an attorney, Mr. Kessler could talk to such an attorney and perhaps the decree would be reentered without additional evidence after the two attorneys had conferred; I further told him that I was planning to leave the City to attend a meeting in New York City scheduled for December 4 and would depart by plane after court on December 3, the next day, so that I was calling him then while I still had a full day before my department to explain that I thought the proper administration of justice required me to set aside the decree until there could be further investigation or time for an attorney to be engaged for Mrs. Murphy; that Mr. Kessler told me that if I felt I wanted to set aside the submission, it was perfectly all right with him, because no suggestion of advantage being taken of the defendant should be disregarded; he further said that he was certain Mrs. Murphy had been fairly dealt with, because a piece of property was to be transferred to her by the agreement of the parties; that he had told Mr. Murphy not to deliver the deed to Mrs. Murphy until thirty days had passed, and that he was certain that the deed had not yet been delivered and that as a result no harm could come from the setting aside of the decree; again he assured me that if I believed such action as I suggested was the right thing to do, I should proceed to take such action; that after thus speaking with Mr. Kessler, I entered an order on the same Second of December, 1958, reading as follows: 'On Court's own motion, decree of November 5, 1958 is set aside and vacated, and cause is taken as re-submitted.' Signed, 'Robert L. Aronson, J.';
'That, thereafter as appears from the court file, on December 5, the firm of Hullverson, Richardson, Hullverson & Jeans entered appearance as attorneys for defendant (this action having been taken while I was out of the city); that on my return I noted the minute of this entry by counsel, and this was the first time the name of said attorneys or any of them had been mentioned in the course of this litigation; and no representative of said firm had ever contacted me concerning this case; that I next saw Mr. Kessler in the court room on his appearance in another case and asked if he and the Hullverson firm were having any discussions so that I might know what to do with the Murphy case; I understood from his answers that they were in contact with each other;
'That on January 16, 1959, at the request of the attorneys for the defendant a 'Motion for Allowance Pendente Lite' was listed on the motion docket of the Court; that Mr. Kessler then asked leave to withdraw as attorney for plaintiff * * *.'
In the affidavit executed by Morris B. Kessler, adopted by relator and incorporated by relator as a part of his reply to respondent's return, he stated he was retained by Bernard W. Murphy to prosecute the divorce action. His version of the telephone conversation with Judge Aronson was stated as follows:
It is admitted by relator that Morris B. Kessler withdrew as attorney for him in the divorce action.
As shown by affidavit of respondent, an order setting aside the judgment and decree entered November 5, 1958, was entered on December 2, 1958, and respondent ordered the cause resubmitted. On December 5, 1958, the firm of Hullverson, Richardson, Hullverson and Jeans entered their appearance as attorneys for the defendant in the divorce action, and on December 17, 1958, said attorneys filed a Motion for Alimony Pendent Lite and Attorneys' Fees in said action.
In view of our ruling, other matters and events which occurred subsequent to December 2, 1958, need not be related.
Relator contends respondent had no jurisdiction to vacate the divorce decree entered in his favor on November 5, 1958, without first giving relator reasonable notice and an opportunity to be heard.
Relator does not challenge the power and jurisdiction of respondent to set aside the divorce decree on his own initiative. He concedes that under the provisions of Supreme Court Rule 3.25, 42 V.A.M.S., the trial court retains control over judgments during the 30 day period after entry of judgment and may reopen its judgment...
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