State v. Harris, 19679.

• Citation: 136 S.W.2d 78
• Decision Date: 20 January 1940
• Docket Number: No. 19679.,19679.
• Parties: STATE ex rel. SCOTT v. HARRIS, Judge.
• Court: Missouri Court of Appeals

136 S.W.2d 78

STATE ex rel. SCOTT v. HARRIS, Judge.

No. 19679.

Kansas City Court of Appeals. Missouri.

January 20, 1940.

"Not to be published in State Reports."

Original proceeding in prohibition by State of Missouri, at the relation of Roswell T. Scott, against Brown Harris, Judge of the Circuit Court of Jackson County, Mo., to prohibit the respondent from taking further cognizance of motion by Mrs. Grace G. Scott to modify an order theretofore made by respondent pursuant to mandate of the Kansas City Court of Appeals.

Preliminary rule made absolute.

Carl L. Anderson and John J. Cosgrove, both of Kansas City, for relator.

Russell Field and Louis R. Weiss, both of Kansas City, for respondent.

CAMPBELL, Commissioner.

Grace G. Scott brought suit against her husband, Roswell T. Scott, for divorce in the circuit court of Jackson County. Trial of the cause on August 31, 1934, in the division presided over by Honorable Brown Harris, respondent herein, resulted in a decree of divorce and award of alimony in the amount of $160.42 per month, of which $40.42 was for the maintenance of minor children.

In December, 1937, the defendant in the divorce action filed motion to modify the award of alimony as adjudged in the decree of divorce upon the ground of change in condition. The motion was heard and denied by respondent, judge. From that ruling the said defendant appealed to this court. On review, this court (Scott v. Scott, 123 S.W.2d 542), reversed and remanded the cause with direction to sustain said motion as stated in the opinion. The court in which respondent presided, on January 21, 1939, rendered a judgment modifying the former judgment in accordance with the mandate of this court. The plaintiff in the divorce suit on April 11, 1939, filed motion to modify the latter judgment based upon the alleged ground that on August 30, 1934, she and her husband entered into a contract in writing by the terms of which she agreed to accept and he agreed to pay alimony in the amount of $160.42 per month; that each was to have certain personal property, not necessary here to describe. Other provisions of the contract are not of consequence in the instant proceeding. The prayer in the motion was that the court approve the provisions of the written contract, and for such further orders as to the court seem proper. In the hearing of this motion in the court of respondent the plaintiff introduced the contract dated August 30, 1934. This contract contained the provision alleged in the motion and other provisions sufficient in law to effect a property settlement between the parties to it. After evidence was heard and while respondent was considering the matter, relator sought our writ in prohibition, prohibiting respondent from taking further cognizance of the motion of Mrs. Scott. The petition for the writ alleged the foregoing facts, and that respondent had indicated he would sustain the motion to modify. The sufficiency of the petition to support the writ is not questioned. Preliminary rule in prohibition, as prayed in the petition, was issued and served upon respondent.

Respondent, in his return to the preliminary rule, stated that on January 21, 1939, the mandate of this court in the case of Scott v. Scott, 123 S.W.2d 542, was received and entered of record in the records of the Circuit Court of Jackson County; that respondent as a duly elected, qualified and acting judge of Division No. 4 of said Jackson County Circuit Court had jurisdiction of the divorce action, and that divorce was granted therein upon trial of the cause; that on April 11, 1939, Grace G. Scott filed in said divorce action application to "modify judgment, a certified copy of which is hereto attached, marked Exhibit `A' and made a part hereof." (The allegations of the exhibit have been stated above.) The return further alleged the motion came on for hearing before respondent; that after the evidence was heard he prepared the judgment he intended to enter, and that, unless prohibited, he will enter decree sustaining the motion to modify. The return further alleged the respondent intended to find from the evidence that Mr. and Mrs. Scott entered into the contract of August 30, 1934, and that it was his duty to "recognize and enforce said contract"; that he intended to enter a judgment as follows: "Wherefore, it is ordered, adjudged and decreed by the court that the defendant pay to plaintiff the sum of One Hundred Sixty Dollars and Forty-two Cents ($160.42) per month, payable semi-monthly thereafter in the sum of Eighty Dollars and Twenty-one Cents ($80.21) on the 1st day of June, 1939, and on the 16th and 1st days of each and every month thereafter, and that plaintiff have execution therefor."

The return further alleged the relator is not entitled to writ of prohibition for the reasons the respondent had jurisdiction of the subject matter of the motion; that the motion to modify was duly instituted by Grace G. Scott in virtue of statutory authority, and that it was the duty of respondent to hear and determine said motion; that although relator appeared in the...