The State ex rel. Kennedy v. Hogan

• Decision Date: 05 January 1925
• Docket Number: 25693
• Parties: THE STATE ex rel. KATHERINE KENNEDY v. GRANVILLE HOGAN, Judge of Circuit Court
• Court: Missouri Supreme Court

267 S.W. 619

306 Mo. 580

THE STATE ex rel. KATHERINE KENNEDY v. GRANVILLE HOGAN, Judge of Circuit Court

No. 25693

Supreme Court of Missouri

January 5, 1925

Motion for rehearing overruled January 5, 1925.

Writ Quashed.

Chilton Atkinson for relator.

(1) Every petition for divorce in this State must contain the averment that the plaintiff has resided within the State one whole year next before the filing of such petition, or else that the offense or injury complained of was committed within this State, or while one or both of the parties resided within this State. R. S. 1919, sec. 1804. (2) In the absence of such allegation, the petition is fatally defective and will not support a judgment, the trial court lacking jurisdiction of the subject-matter. Cheatham v Cheatham, 10 Mo. 299; Collins v. Collins, 53 Mo.App. 473; Sharpe v. Sharpe, 134 Mo.App. 281; Amerland v. Amerland, 188 Mo.App. 56. (3) The parties to a divorce suit cannot confer upon the court jurisdiction of the subject-matter, either by waiver or by consent. There is no common-law jurisdiction, and such matters are controlled entirely by statute. Sharpe v Sharpe, 134 Mo.App. 281; Keller v. St. Louis, 152 Mo. 599. (4) A void judgment is subject to collateral attack. It is not necessary to appeal from such a decree. Hinkle v. Lovelace, 204 Mo. 226. (5) Certiorari is the appropriate remedy, where an inferior court acts without jurisdiction. State ex rel. v. Shelton, 154 Mo. 691; State ex rel. v. Guinette, 156 Mo. 526; State ex rel. v. Johnson, 138 Mo.App. 306. (6) And such is the case even though the applicant have a remedy by action. State ex rel. v. Dowling, 50 Mo. 136. (7) The decree and judgment deprived relator of her civil and property rights, without due process of law, and denied to her the equal protection of the laws. Sec. 30, Art. II, Mo Constitution; Fourteenth Amendment of U.S. Constitution; Dorrance v. Dorrance, 242 Mo. 625.

W J. Geekie for respondent.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

This is a proceeding by writ of certiorari directed to respondent as the present judge of Division Number 16 of the Circuit Court of the City of St. Louis, otherwise known as the Court of Domestic Relations, commanding him to certify to this court a complete transcript of the record and proceedings in a certain divorce cause in that court, brought by James Kennedy, as plaintiff, against Katherine Kennedy, as defendant. Application for the extraordinary writ of this court was filed here by the relator on June 30, 1924, upon due notice given to respondent and to said James Kennedy. The writ issued on July 3, 1924, commanding respondent to make return thereto on or before August 2, 1924. The respondent sent suggestions to this court in opposition to the application for the writ, but they were received by the clerk of this court after the writ had issued. Pursuant to the command of the writ, respondent filed herein on August 2, 1924, his return thereto, consisting of a full, true and complete transcript of the record and proceedings in the said divorce cause, duly certified by the clerk of said circuit court. On October 11, 1924, respondent filed herein his motion to quash the writ and to dismiss relator's petition therefor.

The return shows that the petition of plaintiff, James Kennedy, in the divorce action, was filed in the Circuit Court of the City of St. Louis on February 16, 1922. It is entitled "James Kennesdy, plaintiff, vs. Kathrine Kennesdy, defendant," and contains the usual recitals that plaintiff and defendant were lawfully married in St. Louis, Missouri, on or about October 30, 1911, and that plaintiff continued to live with defendant, as his wife, until on or about December 9, 1920, during all of which time the plaintiff faithfully demeaned himself and discharged all his duties as the husband of defendant and treated her with kindness and affection. The petition then charges that "said defendant wholly disregarding her duties as the wife of the plaintiff (did) offer such indignities as to render the conditions of the life of the plaintiff intolerable in this," then follows certain specific allegations of the nature of such indignities. We cannot commend plaintiff's divorce petition to the bar of this State as a model or form to be followed. It is replete with misspelled words, utterly lacking in punctuation and devoid of proper grammatical construction. Nevertheless, we find it states a cause of action for divorce upon the ground of indignities as prescribed by Section 1801, Revised Statutes 1919, especially in view of the fact that a decree has been entered thereon. The petition contains this recital: "Plaintiff further says that he is now and has been for a space of one whole year fefore fileing this petition, a resident of the State of Missouri, and now resides at St. Louis, Mo." The petition is verified by affidavit annexed thereto, signed "James Kennedy, Plaintiff," and sworn to before a notary public. The affidavit is in statutory form with the exception of two misspelled words. It substantially complies with Section 1802, Revised Statutes 1919.

A writ of summons duly issued from the circuit court on February 17, 1922, directed to the Sheriff of the City of St. Louis, commanding him to summon "Kathrine Kennesdy" to appear in said court on the first Monday of April next to answer the complaint of "James Kennesdy" as set forth in the annexed petition. The return of the sheriff is made thereon, showing that the writ was executed in the city of St. Louis, Missouri, on February 20, 1922, by delivering a copy of the writ and petition as furnished by the clerk to "Katherine Kennedy, defendant herein."

At the February term, 1922, of said court, on March 20, 1922, in the cause entitled, "James Kennedy vs. Katherine Kennedy," the cause, by order duly entered of record, was assigned to Division Number 16 of said court. On April 7, 1922, at the April term, 1922, of said court, in cause entitled, "James Kennesay vs. Kathrine Kennesay," a default by defendant was noted of record, and, on motion of plaintiff, it was ordered by the court that "the petition herein be taken against said defendant as confessed, and that an inquiry be had."

On April 20, 1922, at the April term, 1922, of said court, in cause entitled, "James Kennesdy vs. Kathrine Kennesdy," a decree was entered of record, as follows: "Now at this day this cause coming on for hearing, comes the plaintiff by attorney, but the defendant being still in default, comes not; thereupon plaintiff submits this cause to the court upon the pleading and proof, and the court after hearing the evidence herein, being satisfied that the plaintiff is an innocent and injured party, and entitled to the relief prayed for in his petition, doth order, adjudge and decree that he be absolutely and forever divorced from the bonds of matrimony existing between him and said defendant and that he be restored to all the rights and privileges of an unmarried person, and that the defendant pay the costs of this proceeding, and that execution issue therefor."

On April 24, 1922, at the April term, 1922, of said court, in cause entitled, "James Kennedy vs. Katherine Kennedy, the defendant filed her personally-signed motion to set aside the decree of divorce, duly verified by the oath of defendant, which motion sets forth the following grounds:

"1. That after copy of said petition was served upon defendant she was seriously ill with influenza; that immediately after the service of copy of petition in said cause, she went to a neighbor of hers in whom she had great confidence, asked him for his advice in the matter and requested him to refer her to a reputable attorney whom she could consult; that the name of this neighbor was Edward A. Bohan; that she was advised by Mr. Bohan that he would procure an attorney for her, and for her to do nothing about the matter until she heard further from him; that relying upon the advice of her said neighbor, she did not consult an attorney and had been waiting to hear from said Bohan; that during all the time since said petition was served, defendant has been in very bad health and being without any means of support whatever, it was necessary for her to work whenever her health permitted her to do so and she was not able to get off prior to this time for her to look out for the case herself; that the first intimation that defendant had, that a decree of divorce had been granted to the plaintiff was when she saw it in the St. Louis Post-Dispatch on Friday, April 23, 1922; that immediately thereafter she telephoned to the home of said Bohan and found that he had been sick practically all the time since she consulted him and that he had, therefore, been unable to refer the case to an attorney.

"2. That defendant has since been advised by counsel that she has a good and meritorious defense to said cause of action of plaintiff and she desires to make a defense in said cause and to file a cross-bill therein.

"3. That plaintiff has been informed by reliable informants that an investigator from the Court of Domestic Relations would call upon her to investigate her case and since said investigator never came to her home she thought that no action would be taken in the matter."

On April 26, 1922, at the April term, 1922, of said court, in cause entitled, "James Kennedy vs. Katherine Kennedy," plaintiff filed his motion to strike from the files defendant's motion to set aside the decree of divorce.

On April 28, 1922, at the April term, 1922, of said court, the following order was entered of record in cause entitled, "James Kennesdy vs. Kathrine Kennesdy":

"The court having heard and duly considered the plaintiff's motion to strike defendant's motion to set aside decree from the...