Weintraub v. Murphy

• Decision Date: 22 June 1951
• Citation: 240 S.W.2d 594
• Parties: WEINTRAUB v. MURPHY.
• Court: United States State Supreme Court — District of Kentucky

Page 594

240 S.W.2d 594

WEINTRAUB v. MURPHY.

Court of Appeals of Kentucky.

June 22, 1951.

A. J. Jolly, Newport, for petitioner.

Morris Weintraub, Newport, for respondent.

MOREMEN, Justice.

This is an original action in this court, in which Petitioner, Bertha Berger Weintraub, requests that a writ issue against Respondent, Hon. Raymond L. Murphy, as Judge of the Seventeenth Judicial District, prohibiting him from proceeding in a pending divorce case in which Petitioner is defendant and Daniel J. Weintraub is plaintiff.

The Respondent has demurred, in this court, to the petition filed.

The petition for the writ alleges, in substance, that Daniel J. Weintraub has filed suit seeking an absolute divorce; custody of the youngest child; a determination that he is owner of certain personal property, and that defendant be ordered to surrender that property to him. Bertha Weintraub is a non-resident of Kentucky, therefore a warning order issued, and, upon receipt of a notice of the nature and pendency of the action she filed a pleading, named 'Special Appearance,' which reads: 'The defendant, Bertha Berger Weintraub, enters specially her appearance only for the purpose of suggesting and does suggest that the court has no jurisdiction of the subject matter of this action or of this defendant in that plaintiff has not been a resident of the State of Kentucky for a year immediately proceeding (sic) the filing of this action, and objects to any proceedings against her or upon her property.'

Plaintiff, Daniel J. Weintraub, demurred to this plea on the ground that it was not a special appearance but a general one for all purposes. The Chancellor sustained the demurrer to the 'Special Appearance'; held that defendant had entered a general appearance to the suit, and gave to her twenty days within which to plead further, if she so desired. The petition for a writ of prohibition further avers that Daniel J. Weintraub had been a resident of Baltimore, Maryland, since the year 1933; had not had a residence in this state for one year next before petition was filed, and, since the trial court is without jurisdiction of the action, it is acting erroneously to her great injury, under conditions where she has no adequate remedy, nor other redress, to prevent a judgment against her, except to present her defense under compulsion of the court, and that if a divorce be granted to Daniel J. Weintraub, she would have no right of appeal to this court.

Well pled facts in this petition for a writ will be accepted as being true during the consideration of the demurrer.

It is alleged that Daniel J. Weintraub did not reside in this state for one year next before the institution of the action, and further alleged, under the conditions existing, defendant, a non-resident, is required to file answer in the trial court, and meet with sufficient proof the issue of whether or not plaintiff had been a resident of Kentucky for a period sufficient to give the court jurisdiction.

The question, therefore, presented is whether or not in the event of an adverse decision, she would have the right of appeal. KRS 21.060 provides that no appeal will lie to this court from a judgment granting a divorce. We softened the hard impact of this statute somewhat by holding in the case of Self v. Self, 293 Ky. 255, 168 S.W.2d 743, 744, that: 'It is only where a divorce judgment is void that an appeal may be prosecuted in this court.' But we have also held that where the judgment of the court is only erroneous, even in jurisdictional matters, no appeal lies. In the case of Lewis v. Lewis, 224 Ky. 18, 4 S.W.2d 1106, 1107, it was said:

'For reversal, it is urged that the judgment of the lower court is void because the evidence establishes that the appellee at the time he brought this action, and for more than 8 months prior thereto, was and had been a resident of the state of Indiana, and that if this be true the lower court had no jurisdiction of this action. Cf. Civil Code of Practice, Sec. 423, and Kentucky Statutes, Sec. 2120. Whether, if the judgment of divorce was void, we could reverse it and order it set aside or not we need not determine, although that question seems to have been decided adversely to the contention of the appellant in the case of Maguire v. Maguire, 7 Dana, 181. Although we agree with appellant that the overwhelming weight of testimony is to the effect that the actual residence of the appellee from January, 1926, until [she] brought this action in August, 1926, was in the state of Indiana, yet there was some evidence to show that it was in Clay county, Ky., and although the lower court erroneously adjudged, as we think, that the actual residence of the appellee was in Kentucky, yet under the evidence this was a matter within his jurisdiction to determine, and he having adjudged the fact to be in favor of the appellee, it follows that the judgment was not void, though erroneous.

'We have, under the Statutes, no power to reverse a judgment for divorce which is merely erroneous.'

Counsel has invited our attention to the fact that it is presumed every public officer will act in accordance with the demands of law, and that there is no allegation in the petition that the trial court will not act properly in accordance with the evidence concerning residence which will ultimately be presented to him. We will presume that every public officer will perform his duty, but we will not presume that public officers ...