The State ex rel. Coonley v. Hall

• Decision Date: 20 December 1922
• Citation: 246 S.W. 35,296 Mo. 201
• Parties: THE STATE ex rel. GEORGE T. COONLEY v. WILLARD P. HALL, Judge of Circuit Court of Jackson County
• Court: Missouri Supreme Court

246 S.W. 35

296 Mo. 201

THE STATE ex rel. GEORGE T. COONLEY v. WILLARD P. HALL, Judge of Circuit Court of Jackson County

Supreme Court of Missouri

December 20, 1922

Preliminary rule discharged.

Milton Schwind for relator.

(1) Service by publication is valid and conclusive when the requirements of the statute are substantially complied with as to the facts required to be communicated. Charley v Kelley, 124 Mo. 134. (2) Certain matters essential to jurisdiction, not required to be published, may be left out of the order, and out of the notice. Charley v Kelley, 124 Mo. 138. (3) A judgment becomes final with lapse of term, if no motion is filed in term to carry the cause over. State ex rel. Logan v. Ellison, 267 Mo 321. (4) A judgment is not subject to attack on the ground of irregularity unless it is rendered contrary to the course of the law, or there is a want of adherence to prescribed rules. Orvis v. Elliot, 65 Mo.App. 100. (5) Service by publication is to be tested as to its validity by reference to the applicable statute, that being the sole rule of procedure prescribed. Coffin v. Elgin, 243 Mo. 455. (6) Annulment of a decree of divorce on an after-term motion is prohibited in express terms. Secs. 1811, 1812, R.S. 1919; Nave v. Nave, 28 Mo.App. 505; Smith v. Smith, 48 Mo.App. 615, 618; Salisbury v. Salisbury, 92 Mo. 683; Dorrance v. Dorrance, 242 Mo. 625; Winkler v. Winkler, 273 Mo. 60. (7) Appellate jurisdiction is statutory. Sec. 1469, R.S. 1919; Millar v. Transit Co., 216 Mo. 99; Western Tile Co. v. Naylor, 226 Mo. 420; In re Bauer, 112 Mo. 231. (8) Appellate courts raise questions of appellate jurisdiction of their own motion. State ex rel. Ragsdale v. Walker, 132 Mo. 210; Matlack v. Kline, 190 S.W. 408; Bowles v. Troll, 172 Mo.App. 102. For jurisdiction of this court see State ex rel. Lentz v. Fort, 178 Mo. 518. (9) The prohibition of the statute on divorce by its terms includes appellate courts. Sec. 1811, R.S. 1919; Winkler v. Winkler, 273 Mo. 60. (10) After-term motions directed at a prior-term judgment, if otherwise not prohibited by statute, give to the court no jurisdiction except on affirmative proof that the adverse party has had notice thereof. Konta v. Stock Exchange, 150 Mo.App. 617; Grames v. Hawley, 50 F. 319. (11) Appellate jurisdiction never attaches until jurisdiction in the lower court appears from the record. Wright v. Hink, 193 Mo. 130. (12) To annul a judgment of divorce on an after term motion is prohibited by statute, and without notice on adverse party is not due process of law within the meaning of Sec. 1, Art. 14, U. S. Constitution. Simon v. Craft, 182 U.S. 427.

Alpha N. Brown and Charles M. Miller for Frances A. Cooley, Amicus Curiae.

(1) The defect urged in the proceeding prior to the decree in the divorce case was a failure to comply with the statute, or in other words, "the want of adherence to a prescribed rule or mode of procedure." The order of publication and the proof of publication are a part of the record proper in the divorce case. Sec. 590, R.S. 1909; Woodruff v. Lumber Co., 242 Mo. 381, 387. An irregularity apparent on the record is one for which the motion will lie. Cross v. Gould, 131 Mo.App. 585; Clowser v. Noland, 72 Mo.App. 217; Reed v. Nicholson, 93 Mo.App. 29. Unquestionably this was an irregularity under the statute and the motion would properly lie after term. The Court of Appeals so held, and its opinion cannot here rightly be reviewed. (2) The motion to vacate the judgment and re-instate the case on the docket, filed in the circuit court, questioned the jurisdiction of the circuit court ab initio. If the purported service by publication was invalid, jurisdiction was not obtained over the defendant, and the court had no lawful power to render any valid decree. In all of the cases cited by relator in support of his contention, the court had jurisdiction over all parties to the suit, and properly refused to set aside the judgments in divorce after the term. (3) To apply Sections 1811, 1812, Revised Statutes 1919, as urged by relator, to this proceeding is to deny to defendant the due process of law guaranteed to her by the Fourteenth Amendment of the U. S. Constitution, and Article II, Sec. 30, of the Mo. Constitution, also Article II, Sec. 10, providing that courts of justice shall be open to every person. Dorrance v. Dorrance, 242 Mo. 651. (4) Relator in his brief states that he had no notice of the hearing in the trial court on the motion to vacate the judgment. The presumption is that the Court of Appeals found that it had jurisdiction. Jurisdiction presents itself on every appeal and must be answered by the court, whether propounded by counsel or not. Defiance Water Co. v. City, 191 U.S. 184; McMenamy v. Stilwell, 194 S.W. 467. (5) The Court of Appeals had the same record before it as is before this court, and its determination of its jurisdiction is conclusive. State ex rel. v. Miles, 231 Mo. 493, 500. This record cannot be contradicted. The bill of exception shows that the relator was duly served with notice. Still v. Glass, 222 S.W. 893; State ex rel. Bank v. Sanger, 28 Mo. 315; Atloff v. Transit Co., 204 Mo. 172. (6) Even if relator had no notice of the hearing on this motion before the trial court he was not injured thereby. The trial court overruled the motion and in doing so he deprived the relator of no rights and in no event can he complain or have any cause therefor. The judgment of the trial court was in his favor. Notice was not necessary to confer jurisdiction as relator urges; relator had voluntarily submitted himself to the court's jurisdiction when he filed the divorce suit. His attorneys had never withdrawn of record. The relator had no compunction about divorcing himself from his wife without notice to her, but he now insists that notice is necessary. If the relator was deprived of any rights, which we deny, it occurred in the Kansas City Court of Appeals, and he had notice of the hearing and an opportunity to appear and present his case in that court if he so desired, as is shown by the affdavit of Alpha N. Brown, filed herein, and set out in relator's abstract. The record in this proceeding does not deny this, nor does relator deny it in his affidavit. The Kansas City Court of Appeals undoubtedly considered this in determining whether it had jurisdiction. (7) If the service by publication was invalid and did not confer jurisdiction over Mrs. Coonley in the Circuit Court of Jackson County, then the judgment rendered was void. Cole v. Cole, 3 Mo.App. 571; Irvine v. Leyh, 102 Mo. 201. If this judgment was void and a nullity, the trial court was at liberty to set it aside on its own motion, if for no other reason than to correct the records of its own court, and notice to relator was not necessary. (8) The fact of re-marriage has nothing to do with this case. Glover v. Glover, 187 S.W. 278. (9) Prohibition will not lie to review the decision of the Court of Appeals. State ex rel. Clark v. Kline, 212 S.W. 55; State ex rel. v. Mills, 231 Mo. 493, 503.

ELDER, J. Woodson, C. J., dissents.

OPINION

In Banc.

Prohibition.

ELDER J.

Relator seeks by writ of prohibition to prohibit respondent from proceeding further in the divorce action of George T. Coonley v. Frances A. Coonley, in which a motion to vacate a judgment and decree of divorce and to re-instate the cause on the docket of the Circuit Court of Jackson County was sustained on February 21, 1922. Upon application this court issued a preliminary rule requiring respondent to show cause why our writ should not issue. In due time respondent filed his return and relator then moved for judgment on the pleadings. By leave, counsel for Frances A. Coonley have filed suggestions in opposition to the writ.

The facts disclosed by the petition for the writ and admitted by the return are as follows:

On July 23, 1920, relator, as plaintiff, filed in the Circuit Court of Jackson County, in vacation his petition for divorce from Frances A. Coonley, defendant, which petition, among other things, alleged that the defendant was a non-resident of Missouri and could not be served with process. Thereupon the clerk of said court made the following order of publication, caption omitted, to-wit:

"Now on this 23rd day of July A. D. 1920, comes the plaintiff by attorney and presents to the clerk of the Circuit Court, Jackson County, Missouri, at Independence, in vacation, verified petition filed herein, which among other things says that defendant is a non-resident of the State of Missouri, and the court wherein said suit is brought being fully advised in the premises, has, at Independence, Jackson County, Missouri.

"Thereupon the following order is made by said clerk, to-wit:

"To Frances A. Coonley, defendant:

"You are hereby notified that the plaintiff has commenced suit against you by petition heretofore filed in said court the object and general nature of which is to obtain a decree of divorce from the bonds of matrimony heretofore contracted between plaintiff and defendant, on the grounds of: That defendant has offered to plaintiff such indignities as to render his condition as her husband intolerable. And unless you be and appear at the next regular term of said court, to be begun and held at the county court house in the city of Independence, Jackson County, Missouri, on the second Monday in September next, the same being the thirteenth day of said month, and on or before the third day thereof, answer unto said petition, it will be taken as by you confessed and a decree granted as prayed. It is further ordered that publication hereof be made according to law in the Jackson Examiner, a newspaper published regularly in said county."

Thereafter there was published in the Jackson Examiner, a...