State v. Klene

• Decision Date: 22 May 1919
• Docket Number: No. 16598.,16598.
• Citation: 212 S.W. 55,201 Mo. App. 408
• Parties: STATE ex rel. CLARK v. KLENE, Circuit Judge, et al.
• Court: Missouri Court of Appeals

212 S.W. 55

201 Mo. App. 408

STATE ex rel. CLARK v. KLENE, Circuit Judge, et al.

No. 16598.

St. Louis Court of Appeals. Missouri.

April 29, 1919.

Rehearing Denied May 22, 1919.

Proceeding in prohibition by the State of Missouri, on the relation of Ira R. Clark, against Ben J. Klene, one of the Judges of tile Circuit Court of the City of St. Louis, and Nell Clark. Writ denied.

H. C. Whitehill, of St. Louis, for relator. Wilber B. Jones, of St. Louis, for respondents.

BECKER, J.

By our writ of prohibition the relator seeks to prohibit the defendant, Benjamin J. Klene, judge of the circuit court of the city of St. Louis, and Nell Clark, from proceeding to hear and determine a motion to set aside and vacate a judgment, namely, a decree of divorce rendered in favor of the relator, Ira R. Clark, against Nell Clark, one of the respondents herein. Upon application being filed, a preliminary rule was entered, requiring the respondents to show cause. Respondents in due course made their return, wherein they demurred to the petition and writ in this cause for the following reasons:

"First. Because said petition and writ do not state facts sufficient to constitute a cause of action, nor facts sufficient to entitle relator to the relief prayed for in his said petition, nor to any relief from this court, nor to the issuance of any writ to prevent the respondent Klene, as judge aforesaid, from continuing in the discharge of his official duty, and hearing and determining the certain motion to set aside and vacate a decree of divorce granted relator referred to in said petition.

"Second. Because it appears upon the face of said petition that the said certain motion to set aside and vacate was filed at and during the same term of said circuit court as that at which the said decree of divorce was rendered, and that power to make any orders affecting said decree of divorce rested and continued to rest during said same term in the discretion of said circuit court, and jurisdiction to act in the premises Was and is in said circuit court.

"Third. Because it appears upon the face of said petition that any action to said proceedings under the said act of Congress referred to in said petition is within the discretion of said circuit court, and jurisdiction to act in the premises was and is in said circuit court.

"Fourth. Because it appears on the face of said petition that relator herein is not entitled in this cause to the benefit of said act of Congress."

Whereupon relator moved for judgment upon the pleadings.

The ground for the application of this writ is based upon the Soldiers' and Sailors' Civil Relief Act of Congress of March 8, 1918. U. S. Compiled Stat. 1918, tit. XVIa, p. 417 et seq. The relator herein, as plaintiff in a suit pending in the said circuit court, having filed a written application, duly verified, setting forth that for the past 20 months he has been and still is in the military service of the United States, and unable by reason of that fact to be present in person and to defend himself against the charges and accusations made against him by a motion filed in said cause by the defendant, Nell Clark, one of the respondents herein, in which said motion the said relator (as plaintiff in said action) is alleged to have obtained a decree of divorce from the defendant, Nell Clark, upon fraud and false and untrue testimony and affidavits in said proceeding, and that plaintiff was not the innocent and injured party within the meaning of the law of the state of Missouri, and that plaintiff was not entitled to the relief granted him by the said circuit court in awarding him a decree of divorce.

The petition is lengthy, but the apparent facts admitted by the pleadings may be stated as follows: That relator filed his petition for divorce in the circuit court of the city of St. Louis, and upon the statutory affidavit an order of publication was obtained as against the defendant on the ground that the defendant was a nonresident of the state, or on the ground that the defendant had absented herself from the usual place of abode, so that the ordinary process of law could not be served upon her; that upon the filing of the proof of publication a default was granted plaintiff and on February 19, 1919, on ex parte hearing, a decree of divorce was granted to said relator; that on February 28, 1919, and during the same term of the court at which the said judgment of divorce had been rendered, the respondent, Nell Clark, filed her certain motion in said cause to set aside and vacate the said judgment of divorce in favor of the said relator on the following grounds, among others, that she had no actual notice of the pendency of said suit; that the relator had perpetrated a fraud upon her and upon the court by various allegations in the petition, in that he was not a resident of the state of Missouri for the required length of time immediately next before the filing of said suit; that the relator at all times well knew where she was, but had fraudulently induced the court to issue an order of publication to obtain jurisdiction of the cause; that each and all of the allegations contained in the petition were false and untrue; that relator was not an innocent and injured party, in that he had been guilty of gross indignities toward the defendant, and had been repeatedly drunk while in the uniform of an officer of the United States army, and had come home in such condition while he and the defendant were living at Jefferson Barracks, Mo.; that he had wasted his practice as a physician and surgeon; that defendant has a good and valid defense to the petition, and that at the time the petition was filed defendant was temporarily absent from the state of Missouri, as she was at and during all the time the action for divorce was pending; and in the motion the defendant prayed the court to set aside the decree, and to restore her status as a married woman, and to...