Nave v. Nave, 28 Mo. App. 505

28 Mo. App. 505 | Mo. Ct. App. | 1888

Ellison, J.

In the- month of May, 1884, plaintiff obtained a decree of divorce from defendant for her fault; in March, 1886, the defendant, after having given notice to plaintiff, filed a motion to set aside and annul this decree. Plaintiff appeared to the motion and demurred thereto. The demurrer was sustained and defendant appeals. The grounds set up in the motion are, that the petition in the original suit did not allege that the plaintiff was a resident of Buchanan county;. that the court heard no testimony in support of the petition except affidavits; that the offences charged in the petition had been condoned by cohabitation between the parties, that the plaintiff paid, and the defendant received, thirty thousand dollars not to appear at the trial, or contest plaintiff ’ s suit for a divorce, after the filing an answer by her therein, which answer is charged to be a general denial; that she did not file a motion to set aside the decree during the term it was rendered, by reason of her agreement with the plaintiff not to do so, and she presents as an excuse for delay in presenting her application, that for the first six months after its rendition she was traveling in Europe, and that after her return, though she had repeatedly instructed her attorneys to file a motion in said cause, they had disobeyed her, and she was at last compelled to hire other attorneys to act for her.

If the court had no jurisdiction of the cause its decree was a nullity and should be set aside. Neither the lapse of time, nor evil results following, could prevent this. The allegation in the motion that the court had no jurisdiction, for the reason that the petition does not allege plaintiff’s residence in Buchanan county, is not true in point of fact. The petition alleges that the plaintiff re-hided in the city of St. Joseph, Missouri, and St. Joseph is afterwards alleged to be in Buchanan county, Missouri. Besides, St. Joseph is organized under a charter declared therein to be a public act, and in which the city is located in Buchanan county; of this the court will take judicial notice. It is thus rendered unnecessary to say what would have been the result if the petition had. not contained these allegations. Werz v. Werz (11 Mo. App. 26) is a case where the question arose collaterally and in which will be found an able discussion of the subject.

Where the court has jurisdiction in divorce proceedings, the statute of this state (sec. 2185) has made the decree absolutely final unless appealed from or corrected on writ of error as provided in section 2184. This statute was probably enacted in view of the division of the Supreme Court in Smith v. Smith (20 Mo. 166). It was criticised in Mansfield v. Mansfield (26 Mo. 163), but has never been construed otherwise than as it reads. On the contrary, in Salisbury v. Salisbury (92 Mo. 683), the section referred to is literally interpreted, and it is held “to deny a review in all cases, whether based upon a charge of fraud or not.” In view of this decision it is not at all necessary to enter into a discussion of the question. It is so decided and no doubt properly.

But counsel seek to avoid the force of the statute by denominating the proceeding before us, as a motion, and not a bill or petition for review. The statute is: “ Sec. 2185. No petition for review of any judgment for divorce, rendered in any case arising under this chapter, shall be allowed, any law or statute to the contrary, notwithstanding,” etc. It would be a singular holding to say, in the face of this statute, that you could accomplish the same purpose by motion which you are prohibited from obtaining by petition. A party would thus be enabled, by a change of his pleading, to thwart the object of the law. The purpose of this statute is not to regulate a matter of practice, but it is to prevent the disturbance of a judgment of divorce rendered by a court of competent jurisdiction, under any circumstances, except by appeal or writ of error. Whether we call defendant’s paper a motion or petition, it is certain she is seeking by it to bring about what the law says shall not be done.

The judgment of the circuit court was manifestly correct and it is hereby affirmed.

Philips, P. J., concurs; Hall, J., having been of counsel, not sitting.