Werz v. Werz

• Decision Date: 15 July 1881
• Citation: 11 Mo.App. 26
• Parties: HENRY WERZ, Respondent, v. MARY WERZ, alias MARY DINKELMANN, Appellant.
• Court: Missouri Court of Appeals

11 Mo.App. 26

HENRY WERZ, Respondent,

v.MARY WERZ, alias MARY DINKELMANN, Appellant.

St. Louis Court of Appeals, Missouri.

Jul. 15, 1881.

1. The doctrine of presumptions in support of jurisdiction considered at length.

2. Where superior courts are exercising special and limited statutory powers, and those powers are exercised in a special manner, not according to the usual course of courts of common law or chancery, their records must show every fact necessary to their jurisdiction. Suits for divorce do not come within this rule.

3. Proof that the defendant was formerly married to a third person, and that she had been divorced in a proceeding the petition in which failed to allege that she was a resident of the county in which the suit was brought, will not support a decree of divorce from a second marriage entered into subsequent to the first divorce proceedings.

APPEAL from the St. Louis Circuit Court, LINDLEY, J.

Reversed and dismissed.

DAVIS & REBENACK, for the appellant.

JOHN F. WIELANDY and R. W. JONES, for the respondent.

THOMPSON, J., delivered the opinion of the court.

In 1874, Mary Dinkelmann was, on her own petition, divorced from her husband, Frederick Dinkelmann, by a decree of the circuit court of St. Louis County. Her petition did not state that she was a resident of St. Louis County. She thereafter intermarried with the plaintiff in the present suit, who, after the lapse of five years, seeks a divorce from her in this proceeding.

The only question is whether the failure of Mary Dinkelmann to allege in her petition for divorce from her former husband, Frederick Dinkelmann, that she was a resident of St. Louis County, renders the decree of divorce which was made in that proceeding, void for want of jurisdiction, in such a sense that the prior marriage subsists and the subsequent marriage is a nullity. In order to determine this question, it is proper to consider, first, how the question stands upon the decisions of the supreme court and of this court.

In Cheatham v. Cheatham (10 Mo. 296), a petition for a divorce omitted to state that the complainant had resided within the state for one whole year next before the filing of the petition; nor did it state that the offence complained of as a ground for a divorce was committed within this state, or while one or both of the parties resided within this state. It was held that the omission of these averments rendered the petition bad on demurrer. In so holding the court said that “one or the other of these statements is made essential by the fourth section of the statute, to give jurisdiction to the court.”

In Kruse v. Kruse (25 Mo. 68), the evidence showed that for fifteen or sixteen months prior to the filing of the petition, the petitioner had lived with her father in the state of Kentucky. Upon this ground it was held that the circuit court properly dismissed the bill.

In Cole v. Cole (abstracted in 3 Mo. App. 571), a husband had procured a divorce from his wife in the circuit court of St. Louis County, and afterwards she filed a motion to vacate the decree, on the ground that it was procured through fraud and perjury, and without notice to her. The petition did not show that the petitioner had resided in the state of Missouri for twelve months next prior to the commencement of proceedings, nor that the offence complained of as ground for the divorce was committed within this state while both parties resided within it. Upon this ground the judgment of the circuit court vacating the decree for a divorce was affirmed. In the view taken by the learned judge who delivered the opinion of the court, the decree was coram non judice--a mere nullity, which might, at any time, be so declared or treated, and worth no more than so much waste paper.

In Pate v. Pate (6 Mo. App. 49), a petition for divorce failed to allege that the petitioner was a resident of the county in which the petition was filed. For want of this allegation, a motion was made to dismiss the petition after the pleadings in the case had been made up. This motion was sustained by the circuit court, and this ruling was, on appeal, affirmed in this court. In the opinion of this court the following language is held: “It is not enough, however, that jurisdiction in a divorce suit appear from the whole record; the libel itself must allege every fact, the existence of which is by statute made necessary to the granting of the divorce; and when this is not done in the petition, substantially as required by statute, the bill should be dismissed. The allegation of the replication that plaintiff and defendant resided in St. Louis in 1870, would have been insufficient, even if contained in the petition itself. In every case where a divorce is sought, it should appear plainly on the face of the petition that the facts giving jurisdiction to the court exist. ‘Where superior courts are engaged in the exercise of special and limited statutory powers,’ as is said by the supreme court in Kansas, etc., Railroad Company v. Campbell (62 Mo. 588), ‘they and their records occupy the same footing, and are subject to the same rules and tests, as courts whose jurisdiction is special and limited.’ Where a jurisdictional fact does not appear on the face of the petition, it follows that the court can take no valid step.”

In all of the foregoing cases, it will be observed, the proceeding was a direct proceeding by one of the parties to the decree. In the present case, the question is presented for the first time in a collateral proceeding. It may be observed that where, in a collateral proceeding, a court is asked to declare a judgment or decree a nullity, the court is brought face to face with the consequences of its action, and it acts under a very different measure of responsibility from that which it assumes when the validity of a judgment or decree is questioned in a direct proceeding.

We know that prior to the decision of this court in Pate v. Pate ( supra), it was not the practice of members of the profession, in drafting petitions in divorce proceedings, to state that the petitioner was, at the date of the making of the petition, a resident of the county within which the suit was brought. In 1855, the legislature adopted the following resolution: “That the form-book * * * prepared by the committee on revision, be adopted and published with the Revised Statutes, as provided by law.” Adjd. Sess. Acts 1855, p. 534. The revision of the statutes adopted in that year also provides that “the forms adopted at the present session of the General Assembly, * * * shall be printed in the appendix and published with the Revised Statutes.” The forms thus adopted by the legislature were published in the revisions of 1855, in the General Statutes of 1865, in every edition of Wagner's Statutes, and in the revision of 1879. Among them is a form of the petition of a wife for a divorce. Rev. Stats. 1855, p. 1620; Rev. Stats. 1879, p. 704. This form contains the allegation that the plaintiff has resided in this state one whole year next before the filing of the petition; but it contains no allegation that the plaintiff is a resident of the county in which the suit is brought. The same legislature which adopted this form and ordered it to be published in the revision, enacted a statute relating to divorce and alimony, the fourth section of which contains the same clause as section 2 of the General Statutes under which the decision of this court in Pate v. Pate was rendered, namely: that “the proceedings shall be had in the county where the plaintiff resides.” Under a settled rule of statutory interpretation, this form may be looked to to explain the meaning which the legislature intended to be placed upon the statute; and, taking it so, there can be no doubt that this section of the statute was not intended to declare a fact essential to jurisdiction, but was merely intended to prescribe the venue, a statement of which need not be embraced in the body of the petition. If the suit is not brought in the county of the plaintiff's residence, that is a fact pleadable in abatement; and, unless pleaded in abatement, it is waived.

So far as I can learn, the profession have generally acted upon this view. My inquiries upon this subject lead me to believe that nearly all the divorces which were granted within this appellate district, prior to the judgment of this court in Pate v. Pate, were founded upon petitions which did not contain this allegation. These divorces have been followed in most cases, no doubt, by marriages, and children have been born of these marriages. If we are now to hold that these marriages are mere nullities, and that either party to one of these marriages is at liberty to have it set aside at pleasure upon application to the court for that purpose; if we lay down a rule which will make the parties to these marriages liable under the criminal statute for open and notorious adulterous cohabitation, the very greatest evils and hardships will result. If it were necessary to do so in order to avoid these consequences, I should not hesitate to express myself in favor of overruling the decisions of this court both in Cole v. Cole and in Pate v. Pate. In my opinion the language of the learned judges, who respectively delivered the opinions in those cases, that a mere failure to aver a jurisdictional fact in the petition renders the whole proceeding a mere nullity, cannot be sustained upon sound principles. Certainly the doctrine thus laid down cannot be carried so far as to render decrees in divorce proceedings, which omit to recite the jurisdictional facts in question, open to collateral attack. The question in such cases is, not whether, in point of fact, the court had jurisdiction, but whether it was competent to ascertain whether it had or not, and whether it must have ascertained that it had, before proceeding to judgment. If its record show affirmatively that it had not jurisdiction, there is an end of controversy, for its...