OPINION
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
exercise its ordinary and usual jurisdiction in all cases
wherein the parties have been given five days previous notice
in writing of the calling of such term to be given by the
judge or clerk and served upon the parties or their attorneys
or agents in the manner...