EDWARD GAY CROW, by EDWARD W. TERRY, His Guardian, and ALEXANDER CROW, Trustee under the will of SOPHIE M. CROW, v. KATHERINE MARCHAND CROW-HUMPHREY, Appellant.
Division Two
July 9, 1934
73 S. W. (2d) 807
“We think the proof was sufficient to establish Josie Morris’ ownership of the automobile by gift from her husband. In any event, her undisputed possession, charge, and control of the automobile, at the time it was loaned by her appellant, was sufficient proof of ownership as against appellant. [State v. Montgomery, 181 Mo. 19, 79 S. W. 693, 67 L. R. A. 343, 2 Ann. Cas. 261; State v. Carroll, 214 Mo. 392, 113 S. W. 1051, 21 L. R. A. (N. S.) 311; State v. Williams, 183 S. W. 308.]”
We see no reason why the same language as far as appropriate to the facts here should not be said of defendant, who wrongfully converted to his own use the car in suit.
It is true that in the case of State ex rel. v. Cox, supra, this court enforced vigorously the provisions of
For the reasons stated, the judgment of the circuit court is reversed and the cause remanded for a new trial, not inconsistent with this opinion. Cooley and Westhues, CC., concur.
PER CURIAM:—The foregoing opinion by FITZSIMMONS, C., is adopted as the opinion of the court. All the judges concur.
Parker, Jackson & Grossenheider and Paul A. Richards for appellant.
Goodbar & Gilster, Thomas P. Moore, Charles M. Hay and George F. Heege for respondents.
COOLEY, C.—This case, which comes to the writer on reassignment, is a suit in equity to enjoin the enforcement of a judgment for alimony. Plaintiffs prevailed below and the defendant appealed. Edward Gay Crow is a person of unsound mind. Alexander Crow is his son by his first marriage, to whom Sophie M. Crow, mother of Edward, bequeathed certain property in trust for Edward. No question is raised as to the propriety of joining said trustee as coplaintiff in this action.
Plaintiff‘s evidence tended to show that about 1905 or 1906 and prior thereto, Edward Gay Crow was a young man of considerable
Edward married Katherine Marchand, defendant in this action, February 24, 1909, and they lived together until August 29, 1912, when they separated and never thereafter lived together. Shortly prior to this marriage Edward informed his friend Olian that he was going to get married and Olian advised against it, telling Edward his mother might cut off his allowance. Edward replied that she could not do that, as he “had a birthright.” Mrs. Crow did cut off the allowance for a time but later restored it. By this time Edward had got to drinking excessively and had become or was becoming slovenly in his habits and in Olian‘s opinion was showing increasing signs of mental aberration. Olian detailed various incidents tending to show abnormality that occurred during the three and a half years Edward and Katherine lived together, which we think it unnecessary to detail.
About August 11, 1912, defendant Katherine filed in the Probate Court of St. Louis an application, verified by her, praying the appointment of a guardian for said Edward, alleging that he “is so addicted to habitual drunkenness and the intemperate use of alcoholic stimulants as to be incapable of managing his affairs; that his habits as to the use of said liquors are such that he is a constant menace to the personal safety of himself, of your petitioner and of other persons; that he is entirely incapable of managing his affairs or properly taking care of his person and property. Your petitioner further states that the said Edward G. Crow is so far disordered in his mind as to endanger his own person and the person and property of your petitioner and of others.” This petition was later withdrawn. In the latter part of the same month an incident happened,
Crow continued the excessive use of intoxicants until June, 1914, when he was taken to Glenwood Sanitarium, an institution for inebriates and feeble-minded, in the hope that a cure might be effected. He was released four months later. Thereafter his condition continued to grow worse and in December, 1918; he was again placed in said institution where he has since remained. During his incarceration there he was observed by physicians and attendants who testified that in their opinion he was suffering from dementia precox, a form of insanity, and was probably suffering from that disease at the time of his marriage to defendant. Their evidence tends strongly to show that at least from the time of his second incarceration in the sanitarium in December, 1918, he has been insane and incapable of transacting any business.
On March 4, 1920, the defendant herein filed in the Circuit Court of the City of St. Louis, a suit for divorce and alimony against said Edward Gay Crow. As grounds therefor she alleged in her petition the marriage; that the parties had lived together thereafter until August 29, 1912; that defendant, Edward, had without cause, absented himself from her “for the space of one year and more, to-wit, from and since the 29th day of August, 1912, to the present time;” that during the last two years she had lived with him he had been addicted to habitual drunkenness; that he “has been guilty of such conduct as to constitute him a vagrant... in that, being an able bodied man, capable of supporting this plaintiff, he has wholly failed and neglected so to do;” and that he had offered her divers indignities, specified in the petition, while they lived together. It then alleged that said Crow “has real and personal property of great value and has a monthly income of three hundred ($300) dollars a month, or more;” that said Crow was a resident of St. Louis County, Missouri, to which county the petition asked that process be directed. Nothing was said in the petition about Crow‘s mental condition or that his alleged “residence” in St. Louis County was incarceration in a sanitarium there located. Process was issued, directed to St. Louis County and the officer‘s return showed personal service thereof upon Crow. Shortly after that service of process Sophie M. Crow, who it appears was quite willing to have her son and his wife divorced but desired it to be accomplished without notoriety, employed an attorney, Mr. Taylor R. Young, and she and Mr. Young went to the sanitarium to see Crow. Young tried to talk to Crow but could get no intelligible answer from him. Crow would only mumble and talk to himself, “didn‘t seem to understand and didn‘t say anything that was intelligible.” Young then told Sophie M. Crow that he could not represent Edward. He testified at this trial: “I afterwards consulted Frank Slater, attorney for Katherine Mar-
Immediately after the rendition of the divorce and alimony judgment Sophie M. Crow, through her attorney, paid to Mr. Slater, for his client, $350, being the $200 attorney fee agreed upon and the first $150 monthly installment of “alimony.” About a month later Katherine Marchand Crow married a Mr. Humphrey, with whom she was still living at the time of this trial. No further payments of alimony were made, nor does it appear that defendant herein made any effort to collect further payments until after the death of Sophie M. Crow, which occurred about July 2, 1929. By her will said Sophie left certain property, the nature and amount of which is not shown, to Alexander Crow as trustee for said Edward Gay Crow, still confined in the sanitarium and hopelessly insane. Defendant then threatened to enforce her alimony judgment, which had accumulated to more than $14,000 exclusive of interest, and began taking steps looking to that end. On July 29, 1929, she filed a suit to contest the will of Sophie M. Crow, as to the further progress of which the record does not inform us. The pleadings in effect concede her intention to enforce the alimony judgment against Edward Gay Crow‘s interest in his mother‘s estate by whatever means may be available. In September, 1929, Mr. Terry was appointed guardian of Edward Gay Crow and on February 25, 1930, he filed this suit to enjoin the threatened enforcement of said judgment for alimony, on the ground that the judgment was and is void because of Crow‘s insanity and for fraud practiced upon him and upon the court in its procurement. Prior to Terry‘s appointment Edward Gay Crow had no guardian. The petition herein is long and need not be set out. It sufficiently pleads the facts. It was not assailed below nor is it here. The circuit court found the issues for plaintiffs, that the allegations of the petition were sustained by the greater weight of the evidence, and that the decree of divorce and judgment for alimony had been obtained by fraud perpetrated upon the court and upon said Edward Gay Crow by the plaintiff in the divorce action, defendant herein, and by its judgment perpetually enjoined said defendant from “prosecuting or collecting” or attempting to prosecute or collect said judgment for alimony or any part thereof “by execution or otherwise.”
Appellant first contends that process and judgment go against an insane person as against others, and that the judgment in the
In Graves v. Graves, supra, which was a suit in equity to set aside a judgment against an insane person, it is said that, while a lunatic may be sued by having personal service of summons upon him, a guardian ad litem should be appointed, upon suggestion of insanity, to conduct his case under the supervision of the court and (255 Mo. l. c. 483, 164 S. W. 496, 501): “When such is done, then the judgment binds the lunatic. But the trouble with the case at bar is that this petition seems to aver that this judgment in the original case was rendered without such steps. If so it states a good cause of action. If no guardian ad litem was appointed, then the lunatic never had his day in court in the full sense of the term, and a judgment rendered against him after a suggestion of lunacy as here, would smack of legal if not actual fraud.”
Appellant concedes in her brief that “fraud in the procurement of a judgment against a sane or insane person is ground upon which it may be set aside or its execution enjoined” (italics ours), but she contends that such fraud must be fraud practiced in the procurement of the judgment; that it is not sufficient that the cause of action upon which the judgment was founded was vitiated by
We think the facts of this case bring it within the rule. Had the facts relative to Edward Gay Crow‘s mental condition been disclosed to the court at the hearing of the divorce case it would have been the court‘s duty to appoint a guardian ad litem for him. That was requisite to the end that his rights might be protected. Moreover, the State has an interest in the maintenance of the family relation and it has been said occupies the relation of a third party in divorce proceedings. [See Bethel v. Bethel, 181 Mo. App. 601, 164 S. W. 682.] Without doubt had the court been apprised of the true situation it would have taken the necessary steps to protect the insane man‘s rights and to insure a real hearing of the case on its merits. Realizing this, the defendant, plaintiff in the divorce suit, not only did not disclose the facts but studiously concealed them from the court. Her petition was so drawn as to avoid any suggestion of Crow‘s insanity or incarceration in an asylum. Several of the grounds of divorce alleged were so worded as to give the impression that they had occurred within a time recently before the filing of the suit when defendant herein well knew her husband was mentally irresponsible for his acts. The evidence herein indicates that he may have been irresponsible from the time of the marriage. It will not do to say that Crow was represented at the hearing by his mother or her attorney. Without meaning to impugn her motives, she had no legal right to agree for her son, as she virtually did, that the court should be kept in ignorance of the facts and be permitted, in effect induced, to render a decree of divorce, unopposed, and a judgment for alimony against him, agreed upon between her and the plaintiff
It is suggested by appellant that plaintiff Crow, by his guardian, had an adequate remedy at law by writ of error coram nobis, and therefore an action in equity will not lie. In Gibson v. Pollock, supra, that remedy was successfully invoked to set aside a judgment rendered against an insane person. In the course of its discussion the court said, 179 Mo. App. l. c. 191, “the judgment appears to be valid, and the only way he may have defense is to set it aside by writ of coram nobis, for error of fact not disclosed by the record.” The court, however, was not considering the question whether or not an independent action in equity would lie to set aside a judgment or enjoin its enforcement for fraud in its procurement. Fraud in the procurement of the judgment was not alleged in that case. This court en banc held, in Simms v. Thompson, 291 Mo. 493, 236 S. W. 876, 881,
In Hanson v. Neal, 215 Mo. 256, 284, 114 S. W. 1073, we said: “If the right asserted is a subject of original equity jurisdiction the court will entertain it even though there may be a remedy at law.” [Citing cases.] In one of the cases cited, Stewart v. Caldwell, 54 Mo. 536, 539, it is said that “fraud belongs to the original jurisdiction, always exercised by a court of equity, and constitutes its ‘most ancient foundation;’ and such jurisdiction is not ousted because a remedy exists at law, for the jurisdictional powers, formerly possessed by that court, still continue unaffected by the enlargement which is taking place in the functions of the courts of law; and will not be extinguished by anything short of direct and prohibitory enactment.”
In Smoot v. Judd, 161 Mo. 673, 687, 61 S. W. 854, we said: “The doctrine is thus stated by an able law writer: ‘The power and jurisdiction of courts of equity to enjoin a party from enforcing a judgment which has been obtained, when it would be against conscience to permit him to do so, is at the present day so firmly established, so salutary in its operation, and so thoroughly in accord with the promptings of justice, that it is difficult to realize the stubbornness and bitter jealousy with which the beginnings of its exercise were resisted.’ [1 Black on Judgments, sec. 365.]”
Appellant contends that where relief from a judgment is sought on the ground of fraud the plaintiff must come into court “with a cause unmixed with his own negligence or fault;” and must plead and prove that he had a meritorious defense in the case in which the judgment he seeks to set aside was rendered. Plaintiff certainly cannot be charged with fault or negligence in this case. He was insane and with no guardian, when the judgment was rendered against him and so remained until Mr. Terry was appointed his guardian. This suit was filed within less than six months thereafter. In Gibson v. Pollock, supra, the proceeding to set aside the judgment was begun more than five years after entry of the judgment and eighteen months after the appointment of a guardian. It was held there was no laches.
In Sauer v. City of Kansas, 69 Mo. 46, it is said that “before a court of equity will enjoin a judgment at law, regular on its face, there must be some allegation and proof of injustice; and this injustice can only be shown by stating a defense which the court, before whom the petition is filed, considers a valid one.” The court quotes, as stating the just rule, from Piggott v. Addicks (Iowa), 3 Greene, 427, that, “If it had appeared by the showing of the plaintiff that he had a meritorious defense to the claim, or any part of it, and that he had been deprived of making such defense,” etc., the court should have opened the judgment. (Italics ours.) In 34 Corpus Juris, page 443, section 695, it is said: “It is not necessary to show conclusively that complainant has a sufficient cause of action or defense, but it suffices to establish good faith and tender a seriously litigable issue.” [See, also, 34 C. J., p. 374, sec. 583; Hess v. Fox, 140 Mo. App. 437, 124 S. W. 83; Gilliland v. Bondurant, supra, distinguishing Sauer v. City of Kansas, supra, and Greenard v. Isaacson (Mo. App.), 220 S. W. 694.] We think that in the instant case plaintiff made a sufficient showing of a meritorious defense.
Lastly it is contended that this action cannot be maintained because not a direct but only a collateral attack on the judgment, “since the primary element of a divorce judgment is the dissolution of the bonds of matrimony and not the settlement of property rights,” the latter being but incidental to the divorce. Missouri decisions are cited which hold that permanent alimony cannot be adjudged to a wife except she be granted a divorce. But when so awarded the judgment for alimony becomes a part of the judgment rendered. It is difficult to see how the fact that a judgment for alimony could not have been rendered absent a decree of divorce to the wife, can affect the question here raised, viz., whether a suit in equity to enjoin collection of the alimony judgment on the ground, here asserted, that the whole judgment is void or voidable for fraud in its procurement, is a direct or collateral attack. The Missouri decisions cited do not deal with this question. Appellant also cites and relies upon McCraney v. McCraney, 5 Iowa, 232, 68 Am. Dec. 702, holding that a judgment of divorce, alleged to have been procured by fraud, cannot be adjudged void in part and valid in part. That was a suit in equity to set aside a decree of divorce so far only as to give the plaintiff dower in the real estate and one-third of the personal estate of her former husband, then deceased. Years before the husband had obtained a divorce from the plaintiff, for her fault, whereby under the Iowa statute she forfeited dower and all other rights acquired by virtue of the marriage. The husband had remarried and his second wife survived him. If the divorce was valid, it, by operation of law, necessarily precluded the divorced wife from taking dower or any marital interest in her former husband‘s estate. The trial court adjudged that the divorce should be considered as valid so far as it dissolved the marriage and vacated only “to the extent sufficient to allow the complainant to recover her dower and distributive share of the personalty.” It appears that such was the extent of the relief sought by the plaintiff‘s bill. The court pointed out the inconsistency of the trial court‘s decree in upholding the validity of the divorce in so far as it dissolved the marriage because of the
In the case at bar the plaintiff in his petition and the court in its judgment did not recognize the validity of the divorce. Plaintiff challenged the validity of the whole judgment and sought to enjoin the enforcement of the part thereof which defendant was threatening to enforce to his damage. The court found “that the decree of divorce and judgment for alimony referred to in plaintiff‘s petition were obtained and procured by the defendant by means of fraud perpetrated by her on the court and on the plaintiff Edward Gay Crow,” and that plaintiffs are entitled to the relief prayed, which it proceeded to adjudge. The relief adjudged is not inconsistent with the court‘s findings, nor is one part of the judgment inconsistent with another part thereof. We think the Iowa case cited is distinguishable from the case at bar. Moreover, it does not sustain appellant‘s contention that the suit in question is a collateral attack on the judgment. That question is not discussed.
That a court of equity has jurisdiction to restrain the enforcement of a judgment procured by fraud seems to be clearly recognized in Smoot v. Judd, supra, though the action in that case was one to set aside the judgment. In Jefferson City Bridge & Transit Company v. Blaser, 318 Mo. 373, 300 S. W. 778, the suit was by bill in equity to restrain the collection of certain tax assessments, and it was contended that the attack was collateral. The court reviewed authorities, referred to two sections of our statutes, now
“It thus appears that our statutory law has provided that in a proper case the enforcement of a judgment can be restrained by bill in equity, and whenever such a proceeding necessarily tends to impeach the judgment the enforcement of which is sought to be restrained, although it may not in terms seek to set aside, cancel or annul the judgment, the proceeding should be construed as a direct attack.”
The reasoning and holding in Bridge and Transit Co. v. Blaser, supra,
PER CURIAM:—The foregoing opinion by COOLEY, C., is adopted as the opinion of the court. All the judges concur.
COOLEY, C.
73 S. W. (2d) 790.
Division Two
July 9, 1934.
Jones, Hocker, Sullivan & Angert for appellant.