State v. Hall

• Decision Date: 06 December 1922
• Docket Number: No. 23675.,23675.
• Citation: 296 Mo. 201,246 S.W. 35
• Parties: STATE ex. rel. COONLEY v. HALL, Judge.
• Court: Missouri Supreme Court

246 S.W. 35

296 Mo. 201

STATE ex. rel. COONLEY v. HALL, Judge.

No. 23675.

Supreme Court of Missouri, in Banc.

December 6, 1922.

Rehearing Denied December 20, 1922.

Application by George T. Coonley for a writ of prohibition directed against Willard P. Hall, Judge of the Circuit Court of Jackson County, Independence Division, from prosecuting further the proceedings in the divorce action of George T. Coonley against Frances A. Coonley. Writ denied.

Milton Schwind, of Kansas City, for relator.

Alpha N. Brown and Charles M. Miller, both of Kansas City, for Francis A. Coonley, amid curiæ.

ELDER, J.

Relator seeks by writ of prohibition to prohibit respondent from proceeding further in the divorce action of George T. Coonley v. Frances A. Coonley, in which a motion to vacate a judgment and decree of divorce and to reinstate the cause on the docket of the Circuit Court of Jackson County was sustained on February 21, 1922. Upon application this court issued a preliminary rule requiring respondent to show cause why our writ should not issue. In due time respondent filed his return and relator then moved for judgment on the pleadings. By leave, counsel for Frances A. Coonley have filed suggestions in opposition to the writ.

The facts disclosed by the petition for the writ and admitted by the return are as follows:

On July 23, 1920, relator, as plaintiff, filed in the Circuit Court of Jackson County, In vacation, his petition for divorce from Frances A. Coonley, defendant, which petition, among other things, alleged that the defendant was a non-resident of Missouri and could not be served with process. Thereupon the clerk of said court made the following order of publication, caption omitted, to-wit:

"Now on this 23d day of July, A. D. 1920, comes the plaintiff by attorney and presents to the clerk of the Circuit Court, Jackson County, Missouri, at Independence, in vacation, verified petition filed herein, which among other things says that defendant is a non-resident of the State of Missouri, and the court wherein said suit is brought being fully advised in the premises, has, at Independence, Jackson County, Missouri.

"Thereupon the following order is made by said clerk, to-wit:

"To Frances A. Coonley, defendant:

"You are hereby notified that the plaintiff has commenced suit against you by petition heretofore filed in said court the object and general nature of which is to obtain a decree of divorce from the bonds of matrimony heretofore contracted between plaintiff and defendant, on the grounds of: That defendant has offered to plaintiff, such indignities as to render his condition as her husband intolerable. And unless you be and appear at the next regular term of said court, to be begun and held at the county court house in the City of Independence, Jackson County, Missouri, on the second Monday in September next, the same being the thirteenth day of said month, and on or before the third day thereof, answer unto said petition, it will be taken as by you confessed and a decree granted as prayed. It is further ordered that publication hereof be made according to law in the Jackson Examiner, a newspaper published regularly in said County."

Thereafter there was published in the Jackson Examiner, a weekly newspaper regularly published in Jackson County, for four successive insertions, an order of publication as follows, caption omitted:

"Now on this 23d day of July, A. D. 1920, comes plaintiff in the above entitled cause for divorce and presents his verified petition wherein he has alleged that the defendant is a non-resident of the State of Missouri, and the court wherein said suit is brought being fully advised in the premises, has, at Independence, Jackson County, Missouri, made the following order, to-wit:

"To Frances A. Coonley, Defendant:

"You are hereby notified, etc." (Here follows a notice practically identical with the notice directed to Frances A. Coonley above set forth.)

The notice and order last above mentioned is signed as follows:

"Attest: W. H. Harper, Clerk. By George Donnellan, Deputy Clerk."

Thereafter, on October 8, 1920, being the 18th day of September Term, 1920, of the said Circuit Court, the cause was submitted; plaintiff appearing in parson and by attorney, and defendant making default. An affidavit of the publisher of the Jackson Examiner, showing due publication of the order of publication, was submitted to the court, and a judgment granting relator a divorce was entered.

On March 20, 1921, being the 12th day of the March Term, 1921, of the said court, Frances A. Coonley, defendant in the divorce action, filed a motion to vacate the judgment of divorce and to reinstate the cause, the same being as follows:

"Comes now the defendant and moves the court to vacate the purported judgment and decree of divorce granted plaintiff on October 8th, 1920, as same appears in Record 44 at Page 616, and to reinstate this cause upon the docket for the reason that at the time of making said entry of record no service of process had been had and no entry of appearance' made by defendant; that the attempted and pretended service by publication was not made in accordance with the statute of the State of Missouri as shown by the record entry in this cause and the proof of publication and is wholly void and of no effect."

Relator, in his petition herein, alleges that during the entire year of 1921 he resided in Chicago, Illinois, and that no service of said motion, or of notice thereof, was had upon him or any one for him, and that on the hearing thereof he did not appear in person or by counsel. Respondent in his return states that upon the hearing of said motion no one appeared for the relator and that no evidence was introduced as to whether or not any notice of said motion had been given relator.

On March 23, 1921, during the March Term, 1921, the motion to vacate and reinstate was overruled. Thereafter, on June 2, 1921, during the March Term, 1921, an appeal was allowed defendant Frances A. Coonley to the Kansas City Court of Appeals. On November 13, 1921, during the September Term, 1021, defendant filed her bill of exceptions which was signed and allowed by the court.

On February 15, 1922, during the December Term, 1921, there was received by and filed in the Circuit Court, the mandate of the Kansas City Court of Appeals, reversing the judgment overruling the motion to vacate and remanding the cause with directions to set aside the judgment of divorce and reinstate the cause on the docket. A copy of the opinion of the Kansas City Court of Appeals, reported in 237 S. W. 193, is attached to relator's petition for our writ. The petition recites that no process was served upon relator, or upon any one authorized to accept process for him, of the proceedings in the Kansas City Court of Appeals and that he did not appear therein in person or by counsel. On May 3, 1022, there was filed in this court an affidavit by Alpha N. Brown, of counsel for Frances A. Coonley, stating that on or about November 19, 1921, he mailed a copy of the abstract of record and brief before the Kansas City Court of Appeals to George T. Coonley at the Lumbermen's Exchange Building, Chicago, Illinois, and that he thereafter received a return registry receipt showing that the copy of said abstract and brief was received at Chicago by George T. Coonley on November 23, 1921.

On February 21, 1922, during the December Term, 1021, of the Circuit Court, the court made an order vacating the judgment of divorce theretofore entered and reinstating the cause upon its docket. Respondent, in his return, states that unless restrained he will proceed to hear the cause in due course.

Relator concludes his petition by alleging that with the expiration of the September Term, 1920, of the Circuit Court, the judgment of divorce became final and conclusive; that the said court had no jurisdiction, on a motion filed at the March Term, 1921, to set aside or vacate said judgment; that the Kansas City Court of Appeals was without power or jurisdiction to set aside said judgment; that respondent did not, by the mandate of the Kansas City Court of Appeals, reacquire power to set aside said judgment; and that acting in reliance upon the said judgment of divorce relator remarried before he acquired any knowledge of the proceedings subsequent to the September Term, 1920.

I. From the view we take of this proceeding there is a primary question before us which is decisive of the case and that is— did the Kansas City Court of Appeals have jurisdiction to decide the questions involved in the appeal taken from the order overruling the motion to vacate the judgment of divorce and reinstate the cause? If so, then upon...