The State ex rel. Stack v. Grimm

• Decision Date: 27 January 1912
• Citation: 143 S.W. 450,239 Mo. 340
• Parties: THE STATE ex rel. RICHARD B. STACK v. J. HUGO GRIMM, Judge
• Court: Missouri Supreme Court

143 S.W. 450

239 Mo. 340

THE STATE ex rel. RICHARD B. STACK v. J. HUGO GRIMM, Judge

Supreme Court of Missouri

January 27, 1912

Peremptory writ awarded.

Ryan & Thompson and Thos. B. Harvey for relator.

(1) The allegations of the application for the writ of habeas corpus were insufficient to confer jurisdiction upon the court to issue said writ; for the reason that it is not alleged that the court of the State of Washington had jurisdiction to grant, or did duly grant, a decree of divorce and award to the mother the custody of the child which is alleged to be unlawfully detained from her by this relator, its father. The granting of a decree of divorce and the award of custody of a child in said decree, being a matter of statutory jurisdiction solely, and not being in accordance with the course of the common law, the jurisdiction of the court granting such decree will not be presumed, and such court is regarded as one of limited or inferior jurisdiction in such causes. 2 Bishop, Mar. Div. & Sep., sec. 1162. But an attempt is made in the application for the writ of habeas corpus to allege that the father had been divested of said right of custody and guardianship, and that the same was invested in the petitioner in the habeas corpus, the mother of said child. Said attempt, however, wholly failed to disclose a prima facie showing of her superior right; and the legal effect of said application is the same as if the allegations were simply that she had the child in her custody, and that the father had taken it from her into his custody. (2) At common law the jurisdiction of divorce rested entirely with the ecclesiastical courts, and in the States of the Union the jurisdiction is, therefore, purely statutory. 2 Bishop, Mar Div. & Sep., secs. 801 and 1185; 1 Bishop, Mar., Div. & Sep sec. 128. Steele v. Steele, 35 Conn. 48; Hatfield v. Hatfield, 6 D. C. 80; McGee v McGee, 10 Ga. 477; Robbins v. Robbins, 140 Mass. 528; Sparhawk v. Sparhawk, 116 Mass. 315; Higgins v. Sharp, 164 N.Y. 4; Erkenbrach v. Erkenbrach, 96 N.Y. 456; Brinkley v. Brinkley, 50 N.Y. 184; Olin v. Hungerford, 10 Oh. 268; Northcut v. Lemery, 8 Ore 316; Cast v. Cast, 1 Utah, 112; Le Barron v. Le Barron, 35 Vt. 365. The power to grant a decree of divorce being a statutory and not a common-law power, no presumption of jurisdiction obtains in such a proceeding in any court of any State in the Union; and all courts in exercising jurisdiction in this class of cases are deemed courts of inferior or limited jurisdiction, and, in pleading the judgment of such court, it is absolutely necessary to aver its jurisdiction, or, in the language of our statute, section 1836, R. S. 1909, to allege that the judgment was "duly given or made." 1 Black on Judgments (2 Ed.), sec. 2; 1 Bailey on Juris., sec. 112; 2 Freeman on Judg., sec. 454; 11 Ency. Pl. & Pr. 1138; Hunt v. Dutcher, 13 How. Pr. 538; Harmon v. Comstock Horse, etc., 9 Mont. 243; Weaver v. English, 11 Mont. 84; Boyce v. Brown, 7 Barb. (N.Y.) 84; 2 Black on Judgments, sec. 875; Kelley v. Kelley, 161 Mass. 111; Hardin v. Hardin, 168 Ind. 352; Bailey v. Martin, 119 Ind. 103; American, etc., Life Ins. Co. v. Mason, 159 Ind. 15; Gates v. Newman, 18 Ind.App. 392; Ashley v. Laird, 14 Ind. 222, 77 Am. Dec. 67. State ex rel. v. Dobson, 135 Mo. 1, is conclusive upon the proposition that the application in the case at bar for the writ of habeas corpus was insufficient to confer jurisdiction on the circuit court of the city of St. Louis to issue said writ. (3) The alleged writ of habeas corpus was not signed by the official designated by the statute and was therefore nugatory and its service on the relator herein conferred no jurisdiction. Secs. 2442 and 2447, R. S. 1909; 32 Cyc. 440; Ex parte Bethurum, 66 Mo. 553. This requirement that the judge should sign was a departure from the general rule that the clerk should sign the writs instituting actions. Ex parte Joffee, 46 Mo.App. 365; Sutherland on Stat. Const., sec. 140; Wells v. Supervisors, 102 U.S. 635; Chandler v. Hann, 83 Ala. 390. "Where the writ is not signed by the officer issuing it, it is void." 1 Wade on Attachment, sec. 121; Hernandez v. Drake, 81 Ill. 34; King v. Thompson, 59 Ga. 380; Lindsay v. Kearney County, 56 Kan. 630; Smith & Co. v. Hackley, 44 Mo.App. 614; Hardin v. Lee, 51 Mo. 241; Hargadine v. Van Horn, 72 Mo. 370. The writ of habeas corpus is practically the same as the common-law writ de homine replegiando or writ of personal replevin. 3 Blackstone, Com. 129; Gurney v. Tufts, 37 Me. 130; State ex rel. v. Barnes, 17 Minn. 340. The method designated by the statute for issuing and serving process must be strictly followed. Smoot v. Judd, 161 Mo. 673; Gage v. Trust Co., 156 F. 1002; Westmeyer v. Gallenkamp, 154 Mo. 28; Miners Bank v. Kingston, 204 Mo. 700; 19 Ency. Pl. & Pr. 614. (4) The relator herein was immune from service of civil process upon him because, at the time of the service of the writ of habeas corpus upon him, he was in the city of St. Louis to answer to an indictment for felony and was actually on trial at the time under said indictment; and relator was not then, and had never been, a resident of the State of Missouri. In re Jewett, 69 Kan. 830; Barranger v. Baum, 103 Ga. 465; State v. Whitcher, 117 Wis. 668; Kurtz v. Moffitt, 115 U.S. 487; Ex parte Tom Tong, 108 U.S. 556; Ex parte Milligan, 2 Wall. 2; Holmes v. Jennison, 14 Pet. 386; Kline v. Kline, 57 Ia. 386; State v. Newell, 13 Mont. 302; Byler v. Jones, 79 Mo. 261.

R. P. & C. B. Williams for respondent.

(1) It is insisted that the allegations in the petition for the writ of habeas corpus are insufficient to confer jurisdiction upon the court below, because the petition does not set out that the court of Washington had jurisdiction to grant the decree of divorce and the custody of the child to the petitioner in the court below. Many authorities are cited to establish the point that the jurisdiction of courts in divorce matters is entirely statutory. The power of a court to award custody of children is not dependent on statute. In re Morgan, 117 Mo. 254. In the first place we insist the judgment or decree of the Washington court is properly pleaded. Sec 1836, R. S. 1909; Etz. v. Wheeler, 23 Mo.App. 449; State ex rel. v. Johnson, 78 Mo.App. 573. But aside from this, if the judgment of the Washington court is inartificially pleaded, this would not affect the jurisdiction of the subject-matter of the court below. There is no question but that the court below has jurisdiction of the subject-matter of this litigation. And if the pleadings are defective, or there is a defect in any allegation of the pleadings, any want of proper allegation or otherwise, it is a question that can be determined and should be determined by the court below. The relator herein did obtain judgment of the court below by filing a motion and plea which tested the sufficiency of the allegations of the petition, and all the other questions raised in the petition herein. We insist that where the petition for a writ of habeas corpus shows that the petitioner is properly entitled to the writ, that the sufficiency of the allegations of the petition cannot be inquired into after the writ has been issued, for the obvious reason that the answer of the relator to the return of the respondent may set up any facts which would tend to show her right to the writ. Of course, if the petition itself showed upon its face that the granting of the writ would result in remanding the party to the custody of respondent, then the court would deny the writ, as was done in the case of Ex parte Roberts, 166 Mo. 207. This court held, in the case of Ex parte Brockman, that the relator could set up any facts in answer to the return additional to those set up in the petition which would justify the issuance of the writ, and such seems to be the holding of the courts generally. We insist that the court having issued the writ, the sufficiency of the petition cannot now be questioned in this case, and that the respondent is in contempt of the court as long as he declines to obey the writ issued by the court. Nebraska Children's Home v. State, 57 Neb. 765; Simmons v. Coal Co., 61 L.R.A. 736. (2) It is next insisted that the writ was void because it was not signed by the judge who ordered it issued. This claim is predicated upon R. S. 1909, sec. 2447. The words "out of court" used in this section of the statute mean away from the court; that is, separation of the judge from the clerk. The authority being lodged in the clerk generally to issue writs, the power given the judge here is to be exercised by him at his discretion, and to cover cases where he cannot immediately get in communication with the clerk. This is apparent when we consider the authority of the judge or the court in the issuance of a writ of habeas corpus. Secs. 2442 and 2444, R. S. 1909. If the statute meant that all writs issued in vacation should be signed by the judge himself, then instead of using the words "out of court" the Legislature would have used the same language where it authorizes the judge to issue the writ "in vacation." It is obvious that the Legislature did not intend that the judge should sign the writ himself if the clerk was convenient who could attach the seal of the court to the writ. People v. Sanitary District, 56 N.E. 756; Custer County v. Yellowstone County, 9 P. 593. (3) It is next insisted that the service is invalid and did not give the court jurisdiction over the person of the relator herein, because at the time of the service he was in the city of St. Louis to answer an indictment for felony and was actually on trial at the time, under such indictment. This contention is without merit. Sec. 2454, R. S. 1909; Christian v. Williams, 111 Mo. 429; Baisley v. Baisley, 113 Mo. 544....