State v. Utz

• Decision Date: 09 January 1922
• Docket Number: No. 14092.,14092.
• Citation: 236 S.W. 386
• Parties: STATE ex rel. ANGOLD v. UTZ, Circuit Judge.
• Court: Missouri Court of Appeals

236 S.W. 386

STATE ex rel. ANGOLD v. UTZ, Circuit Judge.

No. 14092.

Kansas City Court of Appeals. Missouri.

January 9, 1922.

Original application by the State, on the relation of Mary A. Angold, for a writ of mandamus against William H. Utz, Judge of Division No. 3 of the Circuit Court of Buchanan County. Peremptory writ granted.

Mytton & Parkinson and Sam Wilcox, all of St. Joseph, for relator.

Eastin & McNeely, of St. Joseph, far defendant.

ARNOLD, J.

On July 8, 1921, during the May term of the circuit court of Buchanan county, Samuel Angold, husband of plaintiff, filed his suit for divorce against his wife, relator herein, in division No. 3 of said court, of which division defendant is and was the judge, upon which a summons was issued. On July 9, 1921, during said term of said court, relator entered her appearance in said suit, and filed her answer and cross-bill, and a motion for temporary alimony for the support of herself and children and for suit money. July 16, Samuel Angold, plaintiff in said suit, appeared in response to a notice and subpoena and gave his deposition therein, being represented by counsel in his behalf. August 21, and on due notice to said Samuel Angold, relator presented her said motion for temporary alimony, theretofore filed, to the defendant herein as judge of said court, while said court was in session, during the May term, 1921, thereof, requesting him to pass thereon.

Defendant herein refused to Pass upon said motion, and stated as a reason for such refusal that the court had no jurisdiction to pass on same prior to the return term of the summons issues in said case, and, further, that to do so would be in violation of a rule of the three judges of the circuit court of Buchanan county that such motions would not be heard prior to the return term, except by agreement. Thereafter relator presented her application for an alternative writ of mandamus, which said writ was granted by this court, and to which defendant has filed his return, setting up the facts as above stated, to which return relator has filed her demurrer on the ground that said return does not state facts sufficient to constitute a defense to relator's cause of action, and asking that said writ be made peremptory.

In support of said demurrer relator urges that when plaintiff filed his suit for divorce, and the defendant therein entered her appearance, the court had full jurisdiction of the parties, plaintiff and defendant. This position is well taken. Section 1182, R. S. 1919 (R. S. 1909, § 1756), provides that suits may be instituted in courts of record, except as otherwise provided by statute, first, by filing a proper petition and by the voluntary appearance of the adverse party thereto. The filing of a petition without service of summons or voluntary appearance of adverse party does not confer jurisdiction. Henry v. Gibson, 55 Mo. 570. And entry of appearance and filing of a plea to merits waives objection that no summons was issued. Bush v. Block & Titus, 193 Mo. App. 704, 187 S. W. 153.

"The court acquires jurisdiction of plaintiff in an action when he voluntarily comes into court and invokes the exercise of its powers and its assistance to compel defendant to render him his rights under the law; and it has been held that there is a suit pending for the purpose of giving the court jurisdiction of the parties and subject-matter, where all the parties appear as plaintiffs as well as when they appear as parties plaintiff and defendant." 15 C. J. 798; Blagge v. Shaw (Tex. Civ. App.) 41 S. W. 756. "Where a defendant has properly been served with process, the court has jurisdiction of his person." 15 C. J. 799.

The law of this state applicable to the facts presented in the case at bar is well settled. In Davison v. Hough, 165 Mo. loc. cit. 572, 573, 65 S. W. loc. cit. 731, 732, it is said:...