198 Mo. 266 | Mo. | 1906
This cause is brought to this court by appeal on the part of the plaintiff from a judgment and decree dismissing the bill of plaintiffs, which sought to set aside certain deeds executed by appellant Lucy Turner, conveying certain lands to the respondent, for possession of the same and for rents and profits.
To fully appreciate the nature and character of this cause of action it is well to indicate the substance of the issues as indicated by the pleadings.
The amended petition upon which the case was tried alleges that one Robert L. McDermott died at the county of Clark intestate during the month of September, 1901, leaving as Ms heirs at law the plaintiffs, his sister, mother and brother.
2nd. That said McDermott at his death was the owner of ten thousand dollars worth of personal property.
4th. That before the death of said McDermott, by a pretended marriage to thq defendant, under the name and style of Bertie Holliday, he married the defendant, and that said pretended marriage, occurred on the ---day of October, 1896.
5th. That defendant by virtue of said marriage claimed to be the widow of the decedent McDermott, and having elected under the statute to take as an heir was entitled to one-half of all his estate.
6th. That after the death of said McDermott, plaintiff Louisa A. McDermott (mother of decedent) conveyed all her right, title and claim in and to an undivided one-sixth of said lands to plaintiff Lucy Turner (sister of decedent), and that plaintiff James W. McDermott (brother of decedent) conveyed to said Lucy Turner all of his undivided one-sixth of said lands by deeds duly recorded.
7th. That thereafter for the purpose of partitioning said lands and for no other purpose whatever, plaintiff Lucy Turner conveyed by deed to defendant all her right, title and interest in the southwest quarter of section 29 in said township and range, and that thereupon in consideration of such conveyance and for the purpose of partitioning said lands defendant conveyed by deed to said Lucy Turner the northwest quarter of section 32, said township and range, and that in order to equalize the value of the lands so divided said defendant paid Lucy Turner the sum of $1,700.
8th. That said defendant never was the wife of said McDermott, deceased, and was not after his death his widow, and was not entitled to any part of said estate of said McDermott, but on the contrary was at the time of the said pretended marriage with said de
9th. That the defendant commenced a suit for a divorce from the said Alonzo H. Gray returnable to the April term, 1896, of the circuit court of Clark county, Missouri, and that at said term of said court such proceedings were had therein that the defendant obtained a decree of divorce from her said husband Alonzo H. Gray, and that within six months thereafter the pretended marriage between her and said McDermott was consummated as aforesaid.
10th. That said decree of divorce so rendered in favor of defendant was and is null and void and did not divorce the defendant or annul the bonds of marriage between her and said Gray.
The petition further states that at the time of the death of the said Robert L. McDermott and at the time of the making of the deeds in partition and long thereafter both the plaintiff and defendant were mutually mistaken with reference to the effect of the divorce decree, and both in good faith mutually believed that the decree of divorce was valid and did divorce the parties, and so believing were mutually mistaken both as to the law and the fact that the defendant was the widow of decedent McDermott by virtue of the said pretended marriage and his heir, and that she was entitled to the undivided one-half of all of his property, she'as aforesaid having elected to take under the statute, and that this plaintiff, Lucy Turner, in good faith, believing the divorce decree valid and that defendant was the wife and widow of said deceased McDermott made the partition deed as aforesaid to the defendant and had she not been deceived by the mutual mistake of both the defendant and herself she would not have made the same, and that there is and was no consideration for the deed from herself to said defendant for the reasons aforesaid, and that on account of the mutual mistake of both
Said petition further charges that on account of the invalidity of said divorce decree and circumstances following as herein stated they were not tenants in common, and that the defendant had no right, title or claim to any of the property of said McDermott, deceased. That they did not discover such mistake until immediately before the commencement of this suit. That said Lucy Turner here brings into court the said sum of $1,700, for the use' of said defendant and asks judgment and a decree that the title in and to the lands so conveyed to the defendant be cancelled and for naught held and esteemed and the same be vested in the plaintiffs according to their respective rights and that they have judgment for possession of the lands and for rents and profits.
The answer to this petition was substantially, first, a general denial. Second, admits that the said McDermott died intestate in Clark county in the month of September, 1901; admits that he was the owner of the lands described in the petition. Third, states the marriage of the defendant at the county of Reno, Kansas, with A. H. Gray, and that she afterwards filed her petition for a divorce in the clerk’s office of the circuit court of Clark county, Missouri. That A. H. Gray being a non-resident of the State of Missouri, an order of publication was made by the clerk of said court and published in the Review, a weekly newspaper, in Clark county, Missouri. That the clerk in providing and furnishing the publisher of said newspaper with a copy of said order of publication styled said defendant as A. H. Gray and that A. H. Gray was the name by which the defendant was usually known and by which he styled himself in business and by which name he was married. That this was a due and legal notice to the said A. H. Gray of the com
The plaintiffs filed a replication denying all of the affirmative matter in the answer.
The testimony elicited at the trial of this cause tended to show substantially the following state of
*278 “NOTICE OE PUBLICATION.
“State of Missouri, County of Clark.
“In the Circuit Court of Clark County, Missouri, April Term, 1896. No. 8805.
“Bertrice Gray, Plaintiff, vs. A. H. Gray, Defendant.
“At this day comes the plaintiff by her attorney before the undersigned clerk of the circuit court in vacation and files her petition and affidavit, stating among other things that the above-named defendant is not a resident of the State of Missouri. Whereupon it is ordered by the clerk that said defendant be notified by publication that plaintiff has commenced a suit against him in this court, the object and general nature of which is to obtain a decree of divorce from the bonds of matrimony heretofore contracted between plaintiff and defendant, and that unless defendant A. PI. Gray be and appear at this court at the next term thereof to be begun and held at the court house in the city of Kahoka, in said county, on the first Monday in April next, and on or before the third day of said term answer or plead to the petition in said cause, the same will be taken as confessed and judgment rendered accordingly. And it is further ordered that a copy hereof be published in the Review, a newspaper published weekly in the county and State aforesaid:
“State of Missouri, County of Clark.
“I, E. P. Spangler, clerk of the circuit court of Clark county, aforesaid, hereby certify that the above is a true copy of the original order of publication in the cause herein named as the same appears in my office.
“Witness my hand as clerk and the seal of said court. Done at office in Kahoka this 1st day of February, 1896.
“ [Seal] E. P. Spangler, Clerk.”
This notice of publication against A. H. Gray was duly published in the Review, a weekly newspaper pub-
According” to the testimony of Mrs. McDermott, the defendant, A. PI. Gray, knew that the name of his wife was Bertrice, and that Bertie, the name in which she was married, was simply used as an abbreviation of Bertrice. There was testimony on the part of the plaintiff tending to show that the name of the defendant in that divorce proceeding was Alonzo H. Gray and that he was commonly known as Lon Gray.
The circuit court of Clark county, the defendant A. IT. Gray being brought into court upon this process, heard the divorce proceeding and granted the decree of divorce. The decree of divorce was introduced in evidence and it was styled Bertrice Gray, plaintiff, vs. A. H. Gray, defendant. This decree was in regular form except the recitation of the publication of the notice in the Gazette-Herald instead of the Review, which was manifestly a clerical mistake. Afterwards on the 15th day of October, 1896, Mrs. Gray was married to Robert McDermott and lived with him as his wife in Kahoka, Missouri, until his death in October, 1901, the other parties to this record being his brothers and sisters who also lived in Kahoka. At the April term, 1902, Mrs. McDermott (nee Gray) filed a petition for partition of the lands belonging to Robert McDermott, in which petition she alleged she was his widow and also alleged that she had filed her election to take a child’s part and that also the brother of Robert McDermott had conveyed his interest to Mrs. Turner. To this petition Mrs. Turner filed an answer setting up the fact that she had acquired all the interest of her mother and brother and admitted plantiff’s claim and election. She admitted that Mrs. Robert McDermott was entitled to
There is other testimony Embraced in the abstract of record, but it is not essential to the determination of the vital and overshadowing proposition in this cause, that is, the question of the validity of the decree of divorce granted defendant from her former husband. As applicable to that proposition the foregoing statement of the facts are sufficient to determine fhe legal proposition disclosed by the record.
Upon the submission of the cause the court entered a decree and judgment finding the issues for the defendant and dismissing plaintiffs ’ bill. A timely motion for new trial was filed and by the court overruled. Prom this judgment the plaintiffs in due time and proper form prosecuted their appeal to this court and the record is now before us for consideration.
OPINION.
This record discloses numerous assignments of error, but it is manifest that the most vital and important proposition presented for consideration is embraced in the contention of learned counsel for appellant that the decree of the circuit court of Clark county
Appellants at the very inception of their statement of this ease say that the purpose of this proceeding is to set aside the decree of divorce rendered in 1896 and have the same declared null and void and for the further purpose of setting aside certain deeds executed by appellant Lucy Turner, conveying certain lands to the respondent.
At the very threshold of the consideration of this proposition we are unwilling to confound this proceeding (which must be treated as purely one to set aside certain deeds) with a proceeding to set aside and annul the decree of divorce obtained by the defendant from her former husband. Unless the decree of divorce is absolutely null and void, mere irregularities in the securing of it can furnish no relief to plaintiffs in this suit. Plaintiffs in this cause could not maintain a proceeding to set aside this decree of divorce; they are strangers to it and have no interest in the subject-matter' of it.' In other words, though the decree of divorce may not be absolutely void, yet there may be some irregularities or a state of facts which would authorize the defendant Alonzo H. Gray, in such proceeding, to maintain an action to set it aside, and by decree annul its force and vitality; but as between these plaintiffs, who are strangers to that record, and this defendant, such decree
I. It is insisted that the force and vitality of the order of publication in the divorce proceeding is materially affected by the failure of the clerk to sign and attest it. The record discloses that the clerk, upon the filing of the petition, spread the order of publication upon the record proper of the court and while he did not sign it, yet the record further discloses that the order returned to the office of the clerk which was published in the weekly paper, as provided by statute, was certified by the clerk as a true copy of the order of publication made in the cause. This in our opinion did not in any way invalidate the order of publication or in any manner affect its force or the purpose it was intended to accomplish. But even conceding that this was an irregularity, are the plaintiffs in any position to attack this irregularity in a collateral proceeding? We think not. While it is true that in determining the validity of judgments rendered upon constructive notice we may look to such notice to see that it is directed to the proper party, for that goes to the jurisdiction of the court over the person; yet if the order of publication was directed to the proper party in his proper name and the proof of such publication is submitted to the court, and the court finds that the defendant has been duly and legally brought into court by such publication, a judgment rendered upon such publication cannot be attacked in a collateral proceeding for mere irregularities of the clerk in making such order. Judge Macfarlane, in Charley v. Kelley, 120 Mo. 1. c. 142, in reviewing the authorities on this subject, states: “It is said by Judge Napton in Kane v. McCown, 55 Mo. 200: ‘When the
While there may be objections urged against the liberality of our divorce laws, in furnishing an easy method of dissolving the marriage relation; yet as long as the law exists and courts pronounce judgments in obedience to it, dissolving such marriage relation, the tendency of the American courts is to regard such judgments as possessing elements of strength and stability which frequently do not attend other decrees and judgments. This is but a proper recognition of the principle of public policy which has repeatedly been respected by the courts for the reason that such decrees and judgments affect directly the status of married persons by dissolving the marriage relation and thereby enabling them to contract new matrimonial relations with other and innocent persons; therefore, such decrees and judgments should not be dealt lightly with; to do so would endanger the peace and good order of society as well as the happiness and well-being of those who have a right to rely upon the stability of such decrees. [Parish v. Parish, 9 Ohio St. 534; Black on Judgments, sec. 320.] It follows, therefore, that the strictness in the rules of law applicable to assailing judgments in a collateral proceeding, should by no means be lessened in their application to decrees of divorce, which, as heretofore indicated, affects such important relations of the human family.
This brings us to the main proposition in this controversy, that is, was the order of publication as published, directed to A. H. Gray, sufficient to bring the defendant Alonzo H. ,Gray into court, and was the court by reason of such process possessed of jurisdiction to hear and determine such divorce proceeding? We have carefully considered the disclosures of the record applicable to this proposition; have viewed the record from every conceivable legal standpoint, and upon the application of the well-settled rules of law, which must govern in the solution of this important question, we are unable to discover any substantial defect in such process, none at least which as between the parties to this proceeding, renders such judgment, granting defendant a decree of divorce from her former husband, Alonzo H. Gray, invalid. The defendant and her former husband, Alonzo H. Gray, resided in Clark county, the county in which this divorce proceeding was instituted. Business transactions in that county with some of the banks in the way of cashing checks given to her former husband, was done with Alonzo H. Gray in the name of A. H. Gray. The very relation sought to be dissolved by that proceeding was assumed by defendant’s former husband in the name of A. H. Gray. His application for license was in the name of A. H. Gray; he was married to the defendant in this cause in the name of A. H.
An action for divorce is one at least in the nature of an action in rem. [Ellison v. Martin, 53 Mo. 575; Burge v. Burge, 94 Mo. App. 15.] In the case last cited the authorities are all reviewed upon the proposition as to the essential requirements of process by publication, treating of the necessity of directing the publication to the defendant by appropriate name, sufficient to bring the party into court by such process. The learned judge in that case, after reviewing the authorities, said that1 ‘ the foregoing rules are quoted mostly from decisions in tax cases to be found in our own reports, where proceedings therein were quasi in rem.” This statement was followed during the course of the opinion by the announcement of the following rule applicable to suits for divorce: “A proceeding for divorce, where the defendant is a non-resident of the State, and is notified by publication, is that in rem or quasi in rem, and no reason is seen why the rules to which we have referred as applicable in tax cases are not equally applicable in a proceeding like the present.”
The general rule as applicable to this subject is that the given and surname of both the plaintiff aud the defendant should be set forth in the pleadings and process with accuracy, and where the service is by publication a substantial and even rigid observance of this rule is required. There are, however, well-understood exceptions to this general rule, and in Turner v. Gregory, 151 Mo. 100, where -all the authorities are exhaustively reviewed, this exception is well defined, and the distinction clearly drawn as to the class of cases in which a variance from the general rule and the use in the publication of simply the initials of the defendant
In Burge v. Burge, supra, it was held and we are of the opinion properly so, that there was no good reason why the rules applicable to proper names in the case of Turner v. Gregory, supra, should not be applied to proceedings for divorce, and in discussing one of the propositions in that case, it was said: “While it is not to be doubted that the description of the decedent in the order of publication by his initials instead of by his full Christian name of ‘Oscar,’ without more, would not be sufficient to authorize a judgment, yet, in view of the fact that he gave the minister solemnizing his marriage with the defendant as his Christian name that of ‘O. G.’ instead of ‘Oscar F.,’ and on other occasions described himself by the name of ‘O. G. Burge,’ it may be that within the meaning of the rule declared in some of the adjudged cases the description in the order as to him was sufficient.”
Following the cases heretofore cited, we have then as to this class of cases a reasonable rule for our guidance in the determination of the sufficiency of process by publication respecting the name of the defendant to whom such process is directed. We have in the case at bar the undisputed fact that the defendant Alonzo H. Gray in this divorce proceeding, when seeking to contract the marriage relation with defendant, which was sought by that proceeding to be dissolved, used the name of A. H. Gray; he was joined and united in marriage to the defendant by that name; this proceeding was brought in the town in which the defendant in this cause and her former husband, Alonzo H. Gray, resided; the notice of publication was published in a weekly newspaper in that town, where Alonzo H. Gray had, in the transaction of business, used the name of A.
We have given the disclosures of this record, in detail, our careful consideration. The parties plaintiff were all familiar with this divorce proceeding; the defendant and her former husband, Alonzo EL Gray, resided in Clark county, Missouri; he deserted his wife and she, so far as this record discloses, in good faith, proceeded to free herself from him in accordance with the provisions of law, and instituted her suit for divorce ; notice of process to the defendant was published in the name used by him in the consummation of the contract; after securing a decree of divorce she married a brother of the parties plaintiff to this proceeding ; lived with him as his wife until he died; in the partition proceedings instituted by this defendant after the death of her husband, at least some of the parties plaintiff fully recognized that she had legally procured a divorce from Alonzo EL. Gray and was then the lawful widow of Robert McDermott. In our opinion this was a just and proper recognition of defendant’s true status, and we are unwilling, upon the disclosures of this record, to say that by reason of the slight irregularities in the order of publication in the divorce proceedings, as heretofore pointed out, the marriage to Robert McDermott was invalid and therefore adulterous.
We have thus indicated our views upon this proposition, and the conclusion reached renders it unneces