State ex rel. Robbins v. Gideon

• Decision Date: 24 December 1934
• Docket Number: No. 5509.,5509.
• Citation: 77 S.W.2d 647
• Parties: STATE OF MISSOURI EX REL. T.J. ROBBINS, RELATOR, v. ROBERT L. GIDEON, JUDGE, RESPONDENT.
• Court: Missouri Court of Appeals

77 S.W.2d 647

STATE OF MISSOURI EX REL. T.J. ROBBINS, RELATOR, v. ROBERT L. GIDEON, JUDGE, RESPONDENT.

No. 5509.

Springfield Court of Appeals. Missouri.

December 24, 1934.

G.W. Rogers for relator.

J.L. Bess and E.M. Wright for respondent.

BAILEY, J.

This is an original proceeding by certiorari instituted in this court by relator to quash the order of Honorable Robert L. Gideon, Judge of the Circuit Court of Taney County, Missouri, made on the 10th day of June, 1933, setting aside a decree of divorce rendered in favor of relator, plaintiff in the divorce suit, on the 29th day of May, 1933. The petition for the writ is in part as follows: "Relator states that at the regular April term of the Circuit Court of Taney County, Missouri, an order was made by the circuit court on the 3rd day of May, 1933, adjourning said term of court until the 10th day of June, 1933.

"That on the 29th day of May, 1933, the Honorable Robert L. Gideon, Judge of the Circuit Court of Taney County, called a special term of the circuit court for the purpose of trying a certain cause of action wherein T.J. Robbins was plaintiff and Grace Robbins was defendant, the said cause of action being an action for a divorce.

"That at said term of court, your relator herein, being the plaintiff in said cause of action, filed his petition and the defendant filed a waiver of service and an agreement that said cause may be tried at said special term of court.

"That the respondent, after having seen the petition and waiver of service and hearing the evidence on the part of the plaintiff, rendered a decree of divorce in favor of the plaintiff.

"That after said decree was rendered, an order was made adjourning said term of court.

"That on the 10th day of June, 1933, the Circuit Court of Taney County met pursuant to its adjournment of May 3, 1933.

"That at said adjourned term of court, on the 10th day of June, 1933, the defendant, Grace Robbins, filed a motion in the Circuit Court of Taney County, asking that the decree rendered at the special term of court on May 29, 1933, be set aside.

"That no notice of the filing of said motion and the hearing of the motion was ever served upon the plaintiff.

"That the court, upon hearing said motion, without notice to the plaintiff, made an order setting aside the decree.

"That the relator was not given an opportunity to be heard and has no remedy by appeal to this or any other court.

"That the plaintiff, since the decree of divorce was rendered, has remarried and a criminal prosecution for bigamy has been filed against the plaintiff, the relator herein in the Circuit Court of Howell County, Missouri, and your relator herein faces criminal prosecution in any county in which he may live with his present wife.

"That the defendant, Grace Robbins, has filed an action for divorce against your relator in the Circuit Court of Howell County, Missouri, and said action is now pending.

"That the action of the Honorable Robert L. Gideon, Judge of the Circuit Court of Taney County, Missouri, in setting aside the decree of divorce rendered at the special term of said court after said term had adjourned was void, and that relator herein has no other adequate remedy at law."

The record in this case shows that on May 3, 1933, the regular April term, 1933, of the Circuit Court of Taney County was adjourned until June 10, 1933, and that on the 29th day of May, 1933, a special term of the Taney County Circuit Court was held. The record does not show that a written order calling said special term was filed with the clerk of the court. The only record in regard to the holding said special term of court is as follows: "Be it remembered that a special term of the Taney County, Missouri Circuit Court was begun and holden on Monday, the 29th day of May, 1933, in the court house in the town of Forsyth, Missouri, Taney County, the county seat of Taney County, in the Thirty-first Judicial Circuit of the State of Missouri, it being a special term called by Honorable Robert L. Gideon, Judge of the Thirty-first Judicial Circuit of the State of Missouri, and judge of this court for the purpose of trying the cause of T.J. Robbins, plaintiff, against Grace Robbins, defendant in an action for divorce. At which time and place there were present Honorable Robert L. Gideon, Judge of the thirty-first Judicial Circuit of the State of Missouri, and judge of this court; and the following officers of said court, viz: W.L. Pumphrey, Sheriff of Taney County, Missouri, and Arter Johnson, clerk of said court. When and where the following proceedings were had and made matters of record."

Following this in the record is the decree of divorce in which it is set forth that defendant therein had entered her appearance and waived service of process. This waiver of service was in writing, duly filed with the clerk, and is as follows:

"Now comes Grace Robbins, defendant in the above entitled cause and waives issuance of a summons herein; waives the necessity of service thereof by an officer; acknowledges service thereof; waives all question of jurisdiction of the court to hear and determine this matter; enters her appearance in said cause and agrees that said cause may be tried at any regular, adjourned, or special term of the circuit court in any county in the Thirty-first Judicial Circuit of Missouri.

                                             "GRACE ROBBINS, X."
                

At the adjourned term held on June 10, 1933, defendant in said divorce suit, respondent herein, filed her motion to set aside said decree of divorce, setting up fraud in the procuring of the waiver of service, duress, condonment, failure to mention an infant child of the marriage in the divorce petition and other matters. Thereafter, and on the same day, the court sustained the motion setting aside the decree of divorce. The sole question now presented to this court is whether or not the Circuit Court of Taney County had the power or jurisdiction to sustain the motion setting aside said decree of divorce rendered at the special term held on May 29, 1933.

The statute authorizing the circuit court to call a special term in vacation was enacted in 1921 (see Laws 1921, p. 254), now Section 1852, Revised Statutes of Missouri, 1929. The law reads as follows:

"The judge of any circuit or criminal court, whenever in his opinion the public good requires, or whenever it is necessary for the dispatch of business, may, by written order filed with the clerk, call a special term of such court for the trial or other disposition of any civil or criminal cause or matter pending therein. At such term the court may...