State v. Hall

• Citation: 257 S.W. 1047
• Decision Date: 13 December 1923
• Docket Number: No. 24220.,24220.
• Parties: STATE ex rel. SHOEMAKER v. HALL, Judge.
• Court: United States State Supreme Court of Missouri

257 S.W. 1047

STATE ex rel. SHOEMAKER v. HALL, Judge.

No. 24220.

Supreme Court of Missouri, in Banc.

December 13, 1923.

Rehearing Denied January 4, 1924.

Motion to Modify Overruled January 4, 1924.

Randolph Laughlin, of St. Louis, for respondent.

Statement.

WOODSON, C. J.

This is an original. Proceeding of prohibition instituted in this court by the relatrix against the respondent, as judge of the circuit court of the city of St. Louis, to prevent him from proceeding further with the trial of a case growing out of a suit for divorce brought by the relatrix here, the plaintiff there, against one Herman Henry Laumeier, defendant, in which she procured a decree of divorce against him on June 12, 1919. The court found that she was the innocent and injured party. Some three years thereafter, on October 22, 1922, at the October term of said court, said Laumeier died a verified petition in said divorce suit praying the court to open up the decree for divorce theretofore entered in said suit, and to make suitable orders for the care and maintenance of a minor child, Henry Shoemaker, alias Herman Henry Laumeier, and for all other proper relief.

In this petition, Laumeier described himself as plaintiff and entitled Byrd Shoemaker, alias Byrd Laumeier, and Henry Shoemaker, alias Herman H. Laumeier, Jr., defendants. The petition, in substance, contained the following allegations:

(1) That it was a suit in divorce, within the meaning of sections 1196 and 1806, R. S. Mo. 1919.

(2) That the petitioner sought to open the decree of divorce made and entered in the cause in 1919 for the purpose of making suitable orders for the care, custody, and maintenance of a minor child, and particularly for the purpose of judicially determining whether said child was or was not the child of the petitioner, and, if it be found that the child was not the child of the petitioner, that both defendants be forever enjoined from asserting any claim against petitioner based on the contention that the child was his child; but, if it be found that the child was his child, that the care, custody, and services of said child should be awarded to petitioner.

(3) That Byrd Shoemaker, on September 30, 1922, had brought an action against the petitioner alleging that a son was born as a result of the marriage.

(4) That petitioner was ignorant as to whether the child was or was not his child, but from the fact that the child was born 17 months subsequent to the date when the relation of man and wife had ceased between Petitioner and Byrd Shoemaker, and from other facts, it was petitioner's belief that said child is not his child.

(5) That Byrd Shoemaker was an unfit and improper person to have the care and custody of the child.

(6) That Byrd Shoemaker and Henry Shoemaker were nonresidents of the state of Missouri and could not be served in this state in the manner prescribed in chapter 12 of the Revised Statutes of Mo. 1919.

The relief prayed for, after requesting that an order of publication be made, was that a hearing be had and that it be judicially determined by the court whether the child was or was not the child of the petitioner. That if it be found and determined that the child was not the child of the petitioner, that both defendants be enjoined from asserting any claim against petitioner, and that if be found that the child was his child, that the care, custody, and services of the child be awarded to the petitioner.

After the filing of said petition, an order of publication was made, directing relatrix and the infant to appear and answer the petition of Laumeier at the next term of court.

Thereafter, on the 6th day of December, 1922, the relatrix appeared specially, and filled a demurrer to the petition of Laumeier, on the ground that it appeared from the face thereof that the court had no jurisdiction over her person. That demurrer was overruled by the respondent, and the cause was set down for hearing on February 28th, the court Ordering that a copy of the order setting the cause for hearing be served upon Victor W. Lund, Esq., who had appeared as attorney for the relatrix in the original divorce proceedings in 1919, and upon attorneys who appeared specially for relatrix in filing the demurrer, and other attorneys in New York representing the relatrix.

Thereafter, on the 24th day of February, 1923, relatrix appeared specially and filed a motion to dismiss the petition of the plaintiff, limiting her appearance solely to the purposes of said motion, and for grounds of such motion stated that the court had no jurisdiction over her person and that the court, in assuming jurisdiction, was depriving relatrix of her property and civil rights, without due process of law, in contravention of the Fourteenth Amendment of the Constitution of the United States, and in contravention of section 30, article 2, of the Constitution of the state of Missouri.

This motion to dismiss the petition was overruled by the respondent.

While the demurrer and motion to dismiss were pending, counsel for Laumeier served notice to take depositions in various cities. Relatrix was produced at the taking of depositions in New York, by her New York counsel, which it is claimed by counsel for relatrix was under an express stipulation and reservation of the right to question the jurisdiction of the respondent, which reservation and stipulation appear on the face of the depositions and are more completely embodied in the stipulation filed in this cause.

This agreement is denied by Laumeier, which is the only disputed fact in the case, and this fact must be determined from the alleged stipulation filed in the case, which is as follows (omitting formal parts):

"Said stipulation to take depositions: Dear Sirs: Re Laumeier v. Laumeier. To further clarify the conversations between Mr. Ewing and Mr. Dupignac, which was later embodied in a statement put in the record in taking the plaintiff's deposition, the undersigned desire to state the facts as follows: On the request from Mr. Laughlin, Mr. Dupignac obtained from the Supreme Court in this jurisdiction, on his own petition, a subpœna under the proper section of our Code of Practice, directed to the plaintiff in the Missouri divorce action, to appear at Mr. Dupignac's office for the purpose of having her deposition taken. Upon the obtention of this subpœna Mr. Dupignac communicated to Mr. Ewing the fact. Mr. Ewing thereupon agreed to produce his client for examination upon the statement that he was not thereby intending to concede jurisdiction in the Missouri court, but was reserving the right to always challenge the jurisdiction of the Missouri court.

"Mr. Dupignac thereupon requested that the subpœna be served and that the witness appear in response thereto. Mr. Ewing agreed that he would have his client come to hs office and sign a copy of the subpœna to appear for examination. Thereafter plaintiff appeared at Mr. Dupignac's office on the date set forth in the subpœna and submitted to oral examination. Before any testimony was taken Mr. Ewing's representative (Mr. Ewing not being present) caused to be s)read upon the record the following reservation:

"`It is conceded that the witness appears to testify in response to a subpœna duly served upon her on the 24th day of November, 1922, and that the usual and proper mileage fees were paid.

"`Mr. Ewing, the attorney for the plaintiff, states on the record that his client is not conceding any jurisdiction at all in St. Louis by reason of the production of the witness for this examination.'

"The following reservation was put on the record the succeeding day by Mr. Ewing personally:

"Mr. Ewing: The witness, the plaintiff in the original divorce action, appears on this 6th day of December, 1922, in accordance with the stipulation entered into by the attorneys for the parties at the previous hearing, for examination, with a reservation of the right to question the jurisdiction of the Missouri court with reference to the matter now pending before it.'

"The foregoing embody, in substance, all conversations between the undersigned as set forth in the foregoing reservations.

                     "Very truly yours,      Dudley Dupignac
                                            "Caruthers Ewing
                

"`P. S.—Mr. Ewing never had any conversation with Mr. Dupignac as to what any other counsel for Mr. Laumeier would do or say.

"When other notices were served Miss Alma Hawkes, private secretary to Mr. Ewing, accepted service on the representation that she was only receipting for a copy of the notices to take the deposition of the particular witnesses, and notices were accordingly left with her.

                                         "Dudley Dupignac
                                         "Caruthers Ewing."
                

While the demurrer and motion to dismiss filed by relatrix in division No. 1 of the circuit court of the city of St. Louis were pending, the Supreme Court of New York County sustained a motion by Laumeier to dismiss the complaint of relatrix against him to recover moneys alleged to have been expended in support of the child. The motion to dismiss, as appears from the record, was sustained on the ground that the New York court had no jurisdiction; exclusive jurisdiction, in the opinion of the New York court, being vested in the Missouri court which had rendered the decree of divorce.

An appeal from the order and judgment in the New York action was taken by relatrix, which appeal is still pending in the Appellate Division of the Supreme Court of New York; but counsel in the argument of the case agreed the latter court had subsequently affirmed the judgment of said appellate court of New York, and that relatrix had duly appealed the cause to the Court of Appeals of that state.

The return of the respondent, in addition to the facts stated in the petition for the writ, is as follows:

On June 6, 1919, .Mr. Laumeier filed suit for divorce in respondent's court, alleging that there were no children of the marriage. The decree for...