Wible v. Wible

• Decision Date: 08 March 1941
• Docket Number: 35099.
• Parties: WIBLE v. WIBLE.
• Court: Kansas Supreme Court

110 P.2d 761

153 Kan. 428

WIBLE v. WIBLE.

No. 35099.

Supreme Court of Kansas

March 8, 1941

Syllabus by the Court.

If a judgment is void, it may be vacated at any time on motion of one affected thereby. Gen.St.1935, 60-3009.

The statute providing that an acknowledgment on the back of a summons, or the voluntary general appearance of a defendant is equivalent to service, is applicable to a divorce action. Gen.St.1935, 60-2515.

Divorce actions are not necessarily local in character but may be transitory. Gen. St.1935, 60-508, 60-1502, 60-2515.

Where plaintiff in divorce action was an actual resident of the state in good faith for one year next preceding the filing of her petition, and defendant waived service of summons and entered his general appearance, divorce decree was not void for want of jurisdiction, though decree was rendered by a district court of a county in which neither the plaintiff nor the defendant resided, and in which defendant was not served with summons. Gen.St.1935, 60-508, 60-1502, 60-2515.

If a question of public policy, touching the granting of divorces is involved in venue statutes, the lawmakers have determined it, and with the determination of such policy it is not the province of the courts to interfere. Gen.St.1935, 60-508 60-1502, 60-2515.

Wife who invoked court's jurisdiction in action for divorce and for property settlement, knowing that her husband was not a resident of the county and that he could not be, and was not, served with summons there, was "estopped" to impeach the judgment and have it set aside.

A party cannot invoke the jurisdiction or power of a court, obtain the benefits sought, and thereafter question the validity of the decree on ground that the court was without jurisdiction to grant the prayer.

1. Actions for divorce under the provisions of G.S.1935, 60-508 60-1502 and 60-2515, are not necessarily local in character but may be transitory.

2. The voluntary appearance by a defendant is equivalent to service under the provisions of G.S.1935, 60-2515, which is general in character and applies to divorce actions as well as to other actions.

3. A decree of divorce, rendered by the district court of a county in which neither plaintiff nor defendant resides and in which defendant is not served with summons, but where plaintiff has been an actual resident in good faith of this state for one year next preceding the filing of the petition and defendant waives service of summons and enters his general appearance, is not void for want of jurisdiction.

4. If a question of public policy, touching the granting of divorces, is involved in our venue statutes, the lawmakers have determined it, and with the determination of such policy it is not the province of courts to interfere.

5. A party cannot invoke the jurisdiction or power of a court, obtain the benefits sought, and thereafter question the validity of the decree on the ground the court was without jurisdiction to grant her prayer.

Appeal from District Court, Crawford County; L. M. Resler, Judge.

Suit for divorce by E. B. Wible against S. N. Wible. A motion to vacate and set aside a divorce decree in favor of the plaintiff was overruled, and the plaintiff appeals.

Judgment affirmed.

O. W. Helsel, of Wichita, and A. B. Keller, Geo. R. Malcolm, and C. A. Burnett, all of Pittsburg, for appellant.

Paul J. Wall, of Wichita, for appellee.

Robert C. Foulston and John F. Eberhardt, both of Wichita, amici curiae.

WEDELL Justice.

This was a motion to vacate and set aside a divorce decree. The motion was overruled and plaintiff appeals.

The substance of appellant's contention is the divorce decree was not obtained in the proper venue, the court was therefore without jurisdiction, and the decree is void. It is conceded, if the judgment was void it may be vacated at any time on motion of a party or any person affected thereby. G.S.1935, 60-3009. The issue is, Was the decree void?

The evidence was in substance as follows: The wife, E. B. Wible, was the plaintiff in the divorce action and is the plaintiff (appellant) in the instant case. Both plaintiff and defendant had been residents of the city of Wichita, Sedgwick county, for many years and were residents of that county on the day plaintiff filed an action for divorce and property settlement in the district court of Crawford county, Kansas. The decree appellant seeks to vacate was rendered December 7, 1936, the same day the petition was filed. The parties were also residents of Sedgwick county on the date the instant motion was filed, to wit, April 12, 1940. No summons was issued in the divorce action but plaintiff obtained from defendant a verified waiver of service of summons and voluntary entry of general appearance, executed before a notary public, in Sedgwick county. Plaintiff filed the same in the district court of Crawford county and upon a showing of an emergency, satisfactory to the district court of Crawford county, obtained an emergency decree of divorce and a property settlement. The defendant did not appear and was not in Crawford county on December 7, 1936. The decree as to property settlement was rendered in conformity with the mutual agreement of the parties. Touching the emergency feature, the court found upon evidence, "That the plaintiff and defendant herein are possessed of certain property rights which require certain contracts and other agreements which the parties cannot safely enter into until this case is disposed of, and that it will be inconvenient to incur unnecessary expense for the plaintiff to return to the jurisdiction of this court after the expiration of sixty days."

The decree enjoined both parties from thereafter claiming, asserting or attempting to assert any interest, right or title in the property of the other. Their children were all of age. In the petition plaintiff alleged she and defendant were now and for many years past had been residents of the state of Kansas. Plaintiff did not allege the county of her or defendant's residence.

Appellant dwells at some length upon the fact an emergency was declared to exist and that a decree was entered upon the same day the action was filed. While those facts might be highly significant under some circumstances, we do not regard them as important in the instant case. Appellant invoked the jurisdiction of the Crawford county court, and by her own evidence induced that court to declare an emergency and to render judgment accordingly. No appeal has ever been taken from that judgment by either of the parties, and it has long since become final and binding unless it be void for want of jurisdiction.

Appellant's contention the divorce decree is void is based upon two statutes. G.S.1935, 60-508 provides: "An action for a divorce, or to annul a contract of marriage, or for alimony, may be brought in the county of which the plaintiff is an actual resident at the time of filing the petition or where the defendant resides or may be summoned."

The pertinent portion of G.S.1935, 60-1502 reads: "The plaintiff in an action for divorce must have been an actual resident in good faith of the state for one year next preceding the filing of the petition, and a resident of the county in which the action is brought at the time the petition is filed, unless the action is brought in the county where the defendant resides or may be summoned."

Appellee contends another statutory provision, pertaining to the effect of the voluntary appearance of a defendant, enacted at the same time (1909), as the provisions relied upon by appellant, must be considered. It is G.S.1935, 60-2515, and it reads: "An acknowledgment on the back of the summons, or the voluntary general appearance of a defendant, is equivalent to service." (Emphasis supplied.)

Appellant insists the latter statute does not apply as it is general in character and the statutes upon which she relies pertain particularly to divorce actions. We think it is applicable. It is a general statute and as such must be held applicable in the absence of some exception therein contained. It contains no exception and we are not at liberty to arbitrarily read a particular exception into it. The applicability of G.S.1935, 60-2515, has been previously determined by this court. It will be observed G.S.1935, 60-508, prescribes the venue not only for divorce actions but for alimony actions and also for actions to annul a contract of marriage. In the latter type of action this court held G.S.1935, 60-2515 to be applicable. Westerman v. Westerman, 121 Kan. 501, 247 P. 863. In that case a husband and wife were divorced in Kansas. Within the prohibited six months' period, after the decree, the wife remarried in Missouri. Thereafter the wife brought an action in Wyandotte county, Kansas, to annul the Missouri marriage. Neither she nor her Missouri husband resided in Wyandotte county, but the husband entered his general appearance. Six years later the wife filed a motion to vacate the decree of annulment. In holding the motion was properly denied, this court said: "The statute does not require that the plaintiff in an action to annul a marriage shall be a resident of this state, and an action of that character may be brought in any county where the defendant may be summoned. R.S. 60--508. Voluntary general appearance is equivalent to service of summons. R.S. 60--2515. Therefore the district court of Wyandotte county had jurisdiction of the parties." (page 504 of 121 Kan., page 865 of 247 P.)

In the same case this court held the district court of Wyandotte county had jurisdiction over the subject matter, that is jurisdiction to adjudicate whether the Missouri marriage was valid or void and that while its decision might have been erroneous, it was not void for...