GRAVES, C. J.
Certiorari to the Kansas City Court of Appeals to review the opinion of that court in the case of Roy W. Conant, Appellant, v. Emma Dodd Conant, Respondent, on the ground that the opinion and decision of said Court of Appeals conflicts with named cases decided by this court.
Roy W. Conant sued his wife, Emma Dodd Conant, for divorce in the circuit court of Jackson county, and the only way the defendant was brought into court was by publication. It would be better to let the opinion of the Court of Appeals bespeak the facts. In the opinion before us, that court says:
"The plaintiff, in a suit for divorce, judgment for which was rendered in his favor at the December
term, December 20, 1922, appeals from an order setting aside the judgment on defendant's motion filed at thy same term, but 44 days after the divorce judgment was rendered.
"Said motion to set aside was by the court continued to the March term and set for hearing on March 17, 1923, at which it was, by leave of court, amended by interlineation so as to insert therein the charge that plaintiff was not, either at the time of filing his petition or at the trial, a bona fide resident of the state one whole year next prior thereto. The court, at said March term, heard defendant's evidence in support of her said motion, and continued said cause for further hearing to a later date in said March term. The abstract does not affirmatively so state, but it is conceded that at this later date in the March term the court continued the cause for further hearing to the June term, June 16, 1923, on which date the court, after hearing further evidence, sustained said motion and set aside the decree rendered at the December term, and reinstated the cause on the docket.
"Plaintiff at all times duly objected to any hearing of the motion, upon the ground that the court had no jurisdiction, after the expiration of the December term, at which the judgment was rendered, to entertain said motion or to set aside the judgment, the said motion, although filed at the December term, not having been filed within four days after the rendition of the judgment. The plaintiff offered no evidence in opposition to said motion, and, when the same was sustained, promptly filed a motion for new trial on said motion, and, when this was likewise overruled, took the usual steps to perfect his appeal, which the court allowed.
"The petition for divorce was filed October 14, 1922, and alleged desertion occurring on October 5, 1921, as the ground thereof. Defendant was summoned by publication as a nonresident, but, not having any actual knowledge of the suit, did not appear, answer, or make any defense, but, so the judgment recites, made default.
"Defendant raises no question as to plaintiff's right to appeal, but she has filed a motion to dismiss the appeal, based solely on the ground that appellant did not bring up the evidence introduced in support of the motion to set aside the judgment, but has merely contented himself with a recitation in the record that `the defendant (respondent herein) offered testimony and evidence tending to prove all the allegations of her motion.'
"So far as concerns plaintiff's attack upon the power of the court to entertain and act upon the motion at the subsequent term, it would not be necessary to bring up the evidence in support of said motion unless, perhaps, to show that the court sustained the motion on matters relating to errors committed in the course of the divorce hearing, which would require a motion for new trial, filed within 4 days, as will be more particularly hereinafter dealt with and set forth. But, as the motion to set aside is based on grounds other than those which can only be included in a motion for a new trial, and as the action of the court is presumed to be right, we do not see wherein the respondent could be injured by a failure to bring up the evidence, or be entitled to have the appeal dismissed upon that ground. Respondent's motion to dismiss the appeal on the ground specified is therefore overruled.
"In its nature, the divorce judgment, considered wholly by itself, and, in the absence of any voluntary action against it on the part of the court, or motion filed against it at the judgment term, was a final judgment; that is, to state it a little more accurately, it was a judgment that, upon the expiration of the term the court itself acted upon it sua sponte or it was attacked by a motion to which the law gives the power to suspend its finality and carry the judgment over to another term and until the motion is disposed of. It is clear that, in the absence of anything of the kind or of anything done by the court on its own initiative during the term, the power of the court over the judgment, or to change it in any way by an order in that case, ceases with the expiration of the term. Lovitt v. Russell, 138 Mo. 474, 483, 40 S. W. 123; Hall v. Lane, 123 Mo. 633, 636, 27 S. W. 546. But by virtue of section 1456, R. S. 1919, motions for new trial and in arrest, if filed within 4 days after judgment and at the same term the judgment was rendered, may attack it and suspend the finality of the judgment, carrying it over to a subsequent term and until they are disposed of. The question presented then is: Inasmuch as the statute gives this power to motions filed within 4 days during the term, can such effect be accorded to other motions filed at the same term, but not within the statutory 4 days?"
The motion to set aside Conant's decree of divorce is referred to in the opinion, and by such reference becomes a part of the opinion. It reads:
"That by the record filed in said Court of Appeals it is shown that the appellant, by his petition filed in the circuit court of Jackson county, Mo., at Independence, Mo., Hon. Willard P. Hall, judge, on the 14th day of October, 1922, duly and in the usual form prayed the court for a decree of divorce against said defendant on the grounds therein set forth, that the defendant, wholly disregarding her duties and obligations as the wife of the plaintiff, absented herself from plaintiff, his bed and board, without a reasonable cause for the space of one whole year and more.
"That said record further showed that defendant was duly and properly notified to appear and answer the petition, by an order of publication duly published and proved: That on December 20, 1922, the 15th day of the December term of said court, a final decree of divorce was by the court granted to the plaintiff; that afterwards on the 1st day of March, 1923, the defendant filed in said court a motion to set aside judgment awarding decree of divorce to plaintiff as follows (omitting caption and signature):
"`Now comes the above-named defendant and moves the court to set aside the judgment, by default, rendered and entered in the above-entitled cause, at the regular December term, 1922, of this court, awarding a decree of divorce to the above-named plaintiff:
"`(1) Because this action was not instituted or prosecuted in good faith, in that the plaintiff, well knowing her exact whereabouts, at the time of the institution of this action fraudulently failed to, and did not, have her served with process herein, except by the publication of the order of publication, obtained herein, of which
she had no knowledge; and because she was not otherwise advised of the institution and pendency thereof until after judgment had been rendered and entered therein awarding a decree of divorce to the plaintiff.
"`(2) Because the plaintiff misled her, in that, following their separation, which was on October 18, 1921, until August 22, 1922, he was continuously corresponding with her and, during all said time, was protesting his extreme loyalty, love, and affection for her, with never a hint he desired her to return to him, or that he was in anywise displeased with her actions, or that he contemplated instituting an action against her to procure a divorce.
"`(3) Because the plaintiff refused to permit her to longer live with him after October 18, 1921, and urged and compelled her to leave him on that date, assigning as his only reason therefor that he was financially unable to longer maintain and provide a home for her.
"`(4) Because the plaintiff is not the innocent and injured party, and was not, and he is not entitled to a decree of divorce from her.
"`(5) Because she has a just and meritorious defense to this action, and is herself the innocent and injured party.
"`(6) Because the plaintiff committed a gross fraud upon her, as well as a gross fraud upon the court, in obtaining said decree of divorce, in that he willfully, knowingly, and falsely alleged in his petition and willfully, knowingly, and falsely testified upon the hearing of this court (a) that he had not lived with her, from the date of their marriage October 17, 1917, until October 5, 1921, the date he alleged in his petition as being the date of their final separation to exceed one year, whereas in truth and in fact he had, as he then and there well knew, lived with her continuously' from the date of their marriage, October 17, 1917, until the date of their final separation October 18, 1921; (b) that she had left him on approximately October 1, 1921, and that he had not seen her since, whereas in truth and in fact he then and there well knew he had lived with her as his wife until October 18, 1921; and (c) that she bad absented herself from...
