*1 Supreme 1310 Court of Yol. 316. injured plaintiff sought
three months after he was job work. first His moving* was a truck furniture, days household but after four he give up because he not see. could He next went to work in department & Foundry Company, mechanical the American Car only but position held the about five hours because he not see. could carpenter carrying He a for then worked for lumber about three weeks carpenter’s helper at an and then a hour, cents at 45 cents an 40 hour, but was laid off because he was to see. In unable Adams v. Co., we allowed for the Railroad loss $12,500 left eye years earning plaintiff day was old a at who $3.75 injured. existing* time There was no he evidence injury testimony eye, although might appear there was that such other years eye if subsequent months or the substance which struck the impairment loss and of vision still there. actual shown greater than in the Adams case. instant ease Measured nearly years ago, judgment standard there set seven $15,000 is not excessive. judgment
Finding no error in the case is reversible affirmed. except sitting. All concur, Gantt, J., not C. Reger, Appellant, v. Enoch et al. 293 S. Catharine W. 414. One, April
Division 1927. Proceeding. plaintiff 1. in the di- RESIDENCE: Divorce Evidence Judgment up vorce of her had taken her the home abode this State daughter keeping petition, her thirteen filed her trunk months before she continuously residing personal belongings daughter’s at the home and visiting daughter employed her, except while a when another (Sec. 7058, 1919) state, R. S. servant in another under statute domestic establishes allegation one whole a resident of this State that she was year petition. filing her next before party, intention, of a mental determination -: Intention. The place largely his of residence. determinative of is Presumption: Evi- Character of Fraud: Burden: DIVORCE DECREE: 3. dence. and that decree, procuring a proving fraud The burden of illegal subsequent was therefore plaintiff’s is charging there fraud. In such case void, rests honesty, faith, good evidence_ innocence presumption in favor satisfactory, leaving strong, presumption distinct repel must be upon the court perpetrated fraud doubt that no reasonable the decree. rendered divorce, a court judgment A Attack. -: Collateral showing parties, no in- subject-matter and of the having jurisdiction fact, every jurisdictional and con- is final reciting face, firmity upon its any proceeding in attack A collateral attack. against collateral clusive .1926] judgment which the challenged except attacks made in the action in which the the have was rendered brought and suits declaring to obtain a decree inception. void from its The circuit courts of this State jurisdiction subject-matter granting divorce, final divorce decree rendered one of jurisdiction such courts which had *2 parties cause and cannot be partition annulled- or attacked in a suit. proceeding In a partition proceeding, brought by in the divorce favor, resulted in a final decree in her to obtain a division of the real deceased, estate of subsequent who she husband, claims was her the answer of deceased’s heirs that the divorce decree was void and therefore her sub- sequent marriage illegal is a judg- collateral attack the divorce ment, and such by them, defense cannot be maintained but the divorce judgment, every reciting jurisdictional fact, is invulnerable to attack in partition proceeding. By Strangers B. -:-: decedent,'who to Record. Children aof are not children or proceeding, descendants of the defendant in the divorce are dgcree not entitled to maintain a plaintiff’s suit to a vacate
favor, although subsequently marriage united in with their deceased Being privies father. proceedings neither nor to the divorce and decree, them maintain a tack it strangers thereto, they but utter have no such as will interest enable decree, they to bill to set aside the nor will be heard at- collaterally ground procurement. on the of fraud in its Equitable parol antenuptial agreement 6. MARRIAGE SETTLEMENT: Jointure: As- Consideration. suming, deciding, without that a can al- be right dower, lowed to defeat or bar the widow’s of the evidence in this wholly that, marriage contemplation prior case with fails to show and in of decedent, by agreement she entered into a contract with him which receive, actually receive, any personal property, she was to and did real or death, by way jointure, provision to take effect his of as a to be life; expressed discharge support during in full the term of her (Sec. dower, by 330, contemplated R. S.' of all her claim of as statute anything 1919). sideration being showing as a con- And there that she received !no void, agreement, even if made. for the it was Marriage Foreign Extrater- within Months: DIVORCE: State Six 7. Policy. marriage party in the State either ritorial Effect: Public of divorce is rendered months after a valid decree of of Kansas within six marriage State, of either state declares the where the statute of that this date, decree, unlawful party its to be within six months after State, absolutely void, in contravention as is not void this and public effect, state, policy has no extraterritorial that but such a statute of granted the. only within state applies has been the divorce where but upon the no restriction fixes The Missouri statute was enacted. in which it State, judgment in this party rendered marriage a divorce of contrary in another state marriage thereto legality resident aof n by such laws. affected in this State is not to its laws Notwithstanding Service: Status. -: Constructive -:8. party within six marriage either declares Kansas of after a statute and ab- unlawful shall be judgment rendered divorce is months by upon service “any judgment rendered of divorce solutely void, given be conformity shall law thereof with publication in state (cid:127) regard force state, the same have and shall in this and credit faith full by rendered judgment been if said as this state persons resident persons, treated shall, of all status state, to the of this a court of this courts aas given the same force and considered held bears,” not be it will which'such the date state by publication upon service rendered decrees persons divorced “status” persons di- same is the than other in states courts a construction Such Kansas. courts decrees vorced SupRbmb op Term,, You. 1312 technical, do not and courts statute would be strained marriage permit such construction where would he to render the effect bigamous, months after that a in Kansas within six will hold State, divorcing parties, was rendered a decree in one of the a resident of this State, not unlawful. 171, J., 426, Divorce, p. Juris-Cyc. n. Corpus 19 C. References: Section 459, 185, 183, 85; p. 66; 456, 91; 175, p. 436, p. n. Section n. Section Section Fraud, J., Dower, 510, Section J., 151, p. 27 C. n. Section 19 C. n. 13. 15; 783, 496, J., p. Section Judgments, 44, n. 170, p. 34 Section C. n. 57. 1295, 521, J., 45, Marriage, p. n. 520, 35; C. Section 827, p. p. n. 53. n. 91; 104, p. Section n. New; 100, p. n. Section Section p. n. New. Montgomery, E. J. Circuit Court. —Son from Sullivan Appeal Judge.
Reversed remanded. appellant. D. M. Wilson for Painter and
J. R.
proceeds de
Supreme Court
appeal, the
(1)
equity
In
cases on
*3
to
deferring
cause,
somewhat
to hear and determine the
novo
275 S.
Link,
Bank
W.
v.
Nat.
findings of
trial court. First
footing im-
standing
like
(2)
judgments
those
939.
Domestic
and' collateral
their indirect
verity,
public policy forbids
port
overreached,
party has
impeachment.
If a
been
contradiction or
consequences
remedy to avoid the
ample
law
him
furnishes
jurisdiction
judgment
or decree
where
the fraud
the court and
516;
Whipple,
Dickson,
v.
139
v.
290 Mo.
Ambler
was rendered. Stuart
Lieber,
1; Baisley
113
325;
Baisley,
239
Mo.
Ill.
v.
Mo.
v.
Lieber
Christianson, 41
544; Hagerman
519;
Cal.
Sutton, 91
Chase v.
v.
Mo.
Callaway,
rel.
208 Mo.
253;
Werz,
App. 26;
v.
11 Mo.
State ex
v.
Werz
200;
Cates,
App.
v.
202 Mo.
App. 447;
57
Cates
Crow,
Gould v.
Mo.
Howey
240
535;
Howey,
352;
Kimmer,
Kimmer
45
v.
S.
v.
N. Y.
480;
Judgments
I
450; Houpt
Black
Simington, Mont.
on
W.
v.
27
v,
712; Edgarton
(2 Ed.) 291;
Scott,
Edgarton,
v.
Howard
225 Mo.
301;
148;
Railway
12
Sodini,
Mont.
v.
94 Minn.
Co. v.
Sodini
United
States,
1; Douglass
State,
168
S.
U.
124 W.
137 A. S.
S.
v.
R.
930;
(3)
19 C. J.
53.
a direct attack
note
To constitute
on
sec.
for
judgment,
proceeding
very purpose.
a
must
instituted
a
be
appeal
out,
If
taken,
an
writ of
sued
or motion made
be
error
judgment
fraud
equity,
vacate
to annul it for
bill in
the at-
object
proceeding being
tack is a
one,
disprove
direct
the sole
of the
apparent validity
if
judgment.
proceeding
of the
But
has an
independent purpose
contemplates
some
result, although
other
overturning
judgment may
important
be
necessary
or even
success,
to its
attack
a collateral one. 1
then the
Black on Judg-
(2 Ed.)
252;
838, 839;
ments
sec.
15 R.
Hester,
C. L.
Hester v.
103
13;
Miss.
101;
20
Morrill,
Morrill
Lovitt
Russell,
Ore.
v.
138
v.
Mo.
1313
*19,26]
v.
18
C. L.
R.
respondents.
(4)
proof is on the
burden
Johnson, 114 Ill.
592; Johnson v.
428;
Clapp, 203 Mass.
v.
Potter
y.
y.
Iowa,
379;
Lambert, 43
Jones,
Blanchard
611;
127 Ill.
Coal Co.
Hunter, 111
Iowa,
v.
287; Hunter
228;
King, 157
Richardson v.
y.
y.
McCormick,
56;
Ark.
McCormick
261;
Gosset, 112
Gosset
Cal.
y. Johnson,
125; Johnson
43; Shepard v.
86 Kans.
Carter,
82 Kans.
y. Mclntire,
574;
v.
119
Mnrcheson
617;
Ind.
114 Col.
Boulden
may
by fraud
be
(5)
judgment
A
Green,
1314 SUPREME being dis- marriage Kansas, tie The Kansas Statute. 7584, Sec. before mar- each as free decree, Missouri by the solved Durland, v. 49; Durland 82 Kan. McCormick, v. riage. McCormick Clark, 517; State v. App. 210 McDowell, Mo. 734; Creen v. 67 Kan. with the in accordance of divorce rendered A 178 20. decree Mo. subject- jurisdiction of the having aby the forum laws given full everywhere, and will parties is valid matter and matters come where the same states in all other effect force and remarry lias prohibition Cye. 14 814. The issue. Bullock v. Bul- state. granted another no to a decree reference 83 Peabody, v. Me. 207. lock, 3; Staples 122 Mass. & Hubbell and Geo. H. Hubbell Ash, Platt Knight,
A. Marr G. respondents. Jackson (1) obtaining In her decree in the Circuit of divorce here) plaintiff fraudulently represented Court, (appellant she, personally, herself, signed her own name her divorce petition. sign plaintiff support Since did not the affidavit signed petition, herself, her divorce and since her name was to said divorce affidavit some other the Jackson Circuit person, Court had jurisdiction no suit, subject the divorce and said is divorce decree Lovelace, attack 204 208; collateral here. v. Mo. v. Hinkle Crane 1071; 253 Deacon, Robertson, S. W. Robertson v. 270 Mo. (2) 137. The Higgins Chanute v. Breen, 497; is void. 9 Mo. Hender- son 718; 1211; v. Henderson, Eng. 265 Mo. 19 Am. & Ency. Law, 1919, R. S. (3) sec. separate 7300. maintenance adjucHcata. not res cause action here another and different one. plaintiff Here the part, sues for a child’s in partition, sues for a claim which she asserts is allowed law—without reference to the conduct James K. ex State Mining rel. Blair v. Co., 490; 262 Mo. Kirven, Chemical Co. v. 215 252; U. S. Harrison Remington, v. 964; L. A. Blair, R. Blair v. 247 Mo. Central Fidelity Co., Co. (N. S.) R. (4) L. A. The Missouri procured divorce decree was by committing a fraud on the Jack- son Circuit Court. jurisdiction To confer necessary it is for the prove that she was a resident of Missouri from November 14, 1916, until November 1917. Plaintiff has failed with refer- ence to both beginning ending and the of this period. vital She was a resident of Chanute, Kansas, until December 1916. She a resident of Oskaloosa, Kansas, from October 1917, until Christmas Collins Collins, Mo. App. 470; R. S. secs. 7058, 1802; Johnson v. Johnson, 95 App. 329; 4 Words *5 & (2 Ser.) Phrases pp. 337, 343; 5 Words & (1 Phrases Ser.) pp. 4226, 4227. The Jackson Circuit Court was fraudulently Beger. Beger 1315 v. 1926} foregoing fraudu- jurisdiction exercise to assume'and induced 804; 45 L. Ed. 175, 181 U. Bell S. misrepresentations. Bell, lent v. 179; 807; 45 I P. L. Ed. C. B. & Streitwolf, 181 U. S. v. Streitwolf y. L. y. By. Co., 16 799; A. 1177; Callicotte, 267 Fed. Callicotte By. Co. 1213, 1215, Eng. Ency. 1209, 1176, 19 386; Law, pp. Am. & B. y. y. 8 589; Westmoreland, "Wagoner Wagoner, 567, 287 State Mo. 651; 1 Freeman 842; Dorrance, 242 on A.. v. Mo. L. B. Dorrance y. (N. S.) Judgments (5 Ed.) 23 L. B. A. 633; Sammons Pike, y. Lieber, 40; v. 133 239 McCormick Bep. 425; Am. St. Lieber (5) 82 McCormick, Begardless 31. of whether the divorce Kan. Court, jurisdiction in the Jackson Circuit decree is void for want just marriage ceremony is void for the reason that occurred twenty-four days granting three months the decree. y. Combs, Ky. 231; 44 Woodworth, 198; Smith Barb. Cox v. 47 1059; Fife, Territory, Smith v. 30 60 300; Niece v. Pac. Conn Pac. y. Conn, 42 46 1009; State, 186; Pac. Blush v. Wilhite v. Wil- Pac. hite, 173; 21 Pac. McLennan, McLennan 31 Ore. Johnson y. (N. 26 Johnson, S.) 179; Cook, L. B. A. 43 Wilson B. A. L. (N. S.) 365; D, Hall v. L. 1917 If Com., B. A. 829. the Missouri legal, divorce decree is it is of the same then force and effect as if it had been rendered in the District Court of County, Kansas, Neosho day February, the 13th McCormick, 1918. McCormick v. 548., Pac. Kans. expressly 'defendants invoke the con- provisions pleaded stitutional specially in their answer being a citizen alleged of Kansas at the time of her marriage to K. Beger, prior thereto, is bound the. statute precluding within six months after the date of her deprive divorce decree. To rights the defendants of their under statute, this violation provisions of the constitutional expressly pleaded. The specially defendants have pleaded the Kan- sas Candler, statute. DeBouchel v. 296 Fed. L. C, B. A. 1916
SEDDON, recently C. This cause reassigned to the writer preparation opinion of an expressing the conclusions court. partition The action is one for the of certain real estate situ- ate in Sullivan County, Missouri. Plaintiff and appellant, Catharine Beger, C. claims to be the widow of James Beger, who died intes- tate iii Sullivan on March being he simple owner fee farming acres of lands in county. Appellant partition lands, seeks having previously said filed her statutory election to take a child’s share the lands of James K. Beger in lieu dower. respondents defendants and are six grandchild children and one Beger by James K. a former mar- riage, and are his heirs at law. *6 Supeeme Vol. 316. Missouri, oe Court Mal- James was husband first married. Her Appellant was twice Kansas in the State married whom she was Johnston, to
colm daughters, two wife and his with Johnston, Malcolm 1879. James the evidence according to and, Missouri, City, to Kansas removed daughters two and his appellant herein, he abandoned there or his appellant, seen from or heard 1903, not been and has Appellant was them. shortly after abandoned daughters, he since by decree Johnston, Malcolm James husband, first divorced from her Missouri, at County, of Jackson in the Court Circuit 1918, married appellant 7, February On June 13, on City, marriage Kansas, County, Chanute, Reger K. Neosho James authority under by Methodist minister ceremony being performed county. probate judge of said issued license until on husband, Reger, James K. Appellant with her second lived Appellant 1920, separation occurred. September 8, when a or about brought a divorced, appellant suit Reger and James K. were not Circuit Reger, K. against husband, James for maintenance 1921, County, 28, several on March Sullivan Reger separation. personally months after their suit an answer served with summons in said maintenance and filed therein, in married which he admitted that he and were County, they Kansas, 7, 1918, in Neosho on and that continued June together year to live as husband and wife until the 1920. The main- merits, tenance action was tried in behalf of the evidence parties respective was heard the Circuit Court of Sullivan May 1921, and a was rendered in which the Circuit County Court of (appel- Sullivan for plaintiff found the issues herein), defendant, lant Reger, good and that the James K. without cause, plaintiff neglected had abandoned the and refused and main- provide her, tain and ordering said pay James K. herein) (appellant per $40 the sum month for her September maintenance from their separation, date of together money attorney $400 as suit fees. After unsuccess- fully seeking a new trial of said maintenance suit, the defendant therein, Reger, appealed James K. from the rendered to City Court of Appeals, in which court appeal dismissed on March 1922, for comply failure to with the rules of that court. petition form, herein is in alleging conventional that Catharine
C. is the widow Reger; of James K. that she has elected to take a child’s estate; share the described real and that she is en- titled to a one-eighth part lands; of said wherefore, prayed it is partition made, lands be and, said if the lands susceptible are not partition kind, that the court make and enter an order for the Reger y. Reger. 13.17 1926\ among respec- proceeds for division said lands sale interests. respective according to their tive generally the respondents denies of defendants answer following three specially pleads allegations petition the. to said legally married was never (1) That defenses: Johnston Malcolm from James her divorce Reger, because James K. Circuit by appellant by fraud committed procured alleged *7 had Missouri, appellant in that County, Jackson Court of Mis- County, resided in Jackson that petition for divorce her year than one whole for more in this State souri, and had resided fact, in whereas, in truth and petition, tiling of said next before the County, Mis- in Jackson appellant did not and have her home reside year before next in this State for one whole and had not resided souri, Missouri in State of filing petition, and was not the of her divorce the petition and filing divorce and of said times of the verification affidavit, verification, of said divorce personally sign did not falsely and fraudu- petition; hence, charged appellant that County of to assume lently Circuit Court Jackson induced divorce, jurisdiction the same to hear and determine of said suit and against said James and of default to enter decree alleged that Johnston, Malcolm reason of it is said effect; (2) leg-al in law no that an decree is void and of force agreement and was and into and between contract made entered appellant contemplation Reger, prior and James K. to and in marriage, appellant their to the effect that was to receive as her compensation Reger, whole and in full the wife of said . discharge of, in of, and lieu all her claims of dower and other rights Reger against estate, marital and K. his demands James profits Reger by one-half of on farm earned of James K. said joint Reger, appellant efforts and labor of and said James K. appellant any right, and that shall not share or have title or in- any property Reger possessed terest K. prior which James on or marriage 7, 1918; (3) marriage ap- their on June pellant Reger appellant K. null and James void because married to said James the State of within K. less than six entry months from and after date the Missouri divorce, dissolving marriage decree of appel- contracted between lant and first husband, her James Malcolm Johnston, (alleged) violation and pleaded contravention certain statutes laws the State'of Kansas. specifically pray The answer does not affirma- equitable relief, tive alleged fraudulently or that procured di- vorce annulled, decree be set merely prays aside that “defend- adjudged ants be go day, together hence without with all other proper relief.” Supreme You. 316. [October Missouri, oe Couet K. James reply admits the previously married been appellant had June
on divorced before had been Johnston, whom she -from Malcolm James procured appellant had Reger; K. and that marriage to her suit, which Reger in maintenances judgment against James specific defenses bar the first two pleaded as a maintenance by his answer, Reger, James K. answer because on lawfully married to suit, that he had admitted making answer the assert said 7, 1918, had failed to June and' such contract. any antenuptial contract, if there were fact allegation every reply other answer. denied each the decree chief, introduced evidence Appellant, on her case-in of Jackson made and entered in the Circuit Court brought February 13, 1918, in the divorce suit City, at Kansas plaintiff, against husband, first James Malcolm by appellant, as County Johnston, defendant, wherein the Jackson Circuit Court therein, Johnston, found that the defendant James Malcolm lawfully by publication, proof of which been summoned had been default; filed; made and defendant made cause was said hearing pleadings, and, submitted to the allegations evidence, plaintiff’s petition the court finds the *8 plaintiff injured to be true and that is the innocent and and entitled wherefore, prayed; adjudged the relief it is and decreed matrimony that the bonds of plaintiff contracted between and defend- ant naught be dissolved and for and held forever from freed obligations thereof, and defendant, that she recover from James Malcolm Johnston, of Appellant the action. put costs also evidence duly copy certified license issued Judge Probate of Neosho County, Kansas, authorizing the mar- riage of Reger, "James K. of Harris, Missouri, twenty-one age, over years, and Katherine Johnston, C. of City, Missouri, age, over twenty-one years,” together with the return and certificate of a Methodist Kansas, minister Chanute, endorsed the mar- riage license, certifying "performed that he ceremony joining in marriage the above couple named on day the 7th of June, 1918, at Chanute, Neosho County, Appellant Kansas.” put also in evidence the written election, signed and acknowledged by appellant on March 30, 1923, duly and filed in the office of the Deeds, Recorder of duly also filed in the Missouri, Court, Probate of Sullivan County, on March 31, 1923, whereby appellant elected to take- child’s share lands her husband, deceased James K. Reger, in lieu of dower. Appellant put also in evidence judgment, rec- ord entries, files and pleadings in the maintenance suit brought by appellant against said James K. in the Circuit Court of Sulli- van County, Missouri. me] ap- show that by respondents tended to introduced evidence prior time Missouri, for some City, in Kansas bad resided
pellant residence her appellant transferred 1915, but that September, September, Kansas, in County, Neosho citizenship Chanute, and resident of a citizen registered and voted as 1915; that she March, 1916, and also city Kansas, election held Chanute, at 1916; that, 7, November at national election held on in a South August 11, 1916, appellant resided house city Chanute, that the Highland city Kansas, Street in the gas upon the user of Chanute, Kansas, show that she was records premises 20, 1916, gas upon prem- said said until December when the city appellant’s city account with the ises was cut off and' closed, deposit returned to the the meter was read and the meter occupant premises that the records of December moving company in that transfer and showed the household Chanute goods Highland and furniture contained in the at 1519 South house premises company were moved transfer from said on De- Street said 20, 1916; appellant personally sign and cember did not swear affidavit, petition against first verification, of the divorce husband, Johnston, 12, 1917, but on said Malcolm on November date, petition 14, 1917, and on November when said divorce was filed (cid:127) City, in the Circuit Court of Jackson at Kansas appellant employed family a domestic servant in the city Oskaloosa, Kansas; continuously employed Oskaloosa, Kansas, 25, 1917, October 15 and December between during regular said time she was absent from the duties of employment days Thanksgiving only Day, such a few about place 29, 1917; was November and that did not leave her employment Oskaloosa, Kansas, on either November or on November 1917. The introduction all evidence objected excepted by appellant gro.und trial at the immateriality; of its attempt-to impeach (in is an and attack County) the Circuit Court of Sullivan the- decree *9 by the County; Circuit Court of Jackson that the divorce decree can- collaterally not be impeached attacked, only or attacked, but can impeached, aside, or set proceeding; direct and that defendants respondents strangers are suit, they to the divorce and therefore cannot attack the directly collaterally. divorce decree either
Respondents did not agreement introduce evidence written appellant between Reger, fixing settling-their James K. re- spective property rights. respondent, Guthrie, daughter Elsie of James Reger, K. letter, testified that she had seen and read a writ- ten appellant father, her Reger, before their mar- riage, and, when what, asked to state if anything, was stated in op Missouri, Yol. 316. SUPREME Court “That answered: respecting property, her witness
letter father’s right may It doesn’t my present. at It later. doesn’t come to mind was objections said witness appellant’s exceptions, now.” Over were to testify children allowed to “told me that ns my g’et my made, she and my what mother and father and what cross-examination, get said father made was she one-half.” On thing, “My same witness further testified: father told me the Reger children, Mrs. was we were to all property, have they there, have one-half what made she come time provided she had him That was the taken care of until his death. Reger’ just that, contract. Mrs. me too. I think of that told didn’t They They separate. now. both said the same. were I don’t know as I they can My remember was when said this contract made. separately.” father and her both stated the same contract to Re- me spondent, objections Reger, Ellis a son Reger, of James K. over the exceptions testify: of appellant, was allowed to “The best I now, remember (appellant) she said their contract only she was they they have a half of what made from the time were married, and the they children was to have what done made.” On cross-examination, just he further testified: “I don’t know I remember how question up rights came property about the be- my tween stepmother. father and They talking were it, her and my father. we talking And were a little, they just stated the contract way then. I it, understood the contract was that we children were to have everything, except Reger Mrs. was to have one- they half made from the marriage. time of only That is the I time ever heard it mentioned.” Appellant, deposition her read evidence respondents, “I heirs, testified: never told the Ellis al, et part that I wanted no of the estate of Reger, Mr. all I wanted was one-half of Iwhat made. I anything never told like ’’ that. testify trial,
Appellant deposi as a witness at the but did her respondents. in evidence In and read her tion taken that she resided and deposition, admitted voted Cha- November, nute, Kansas, of the national election in at time substance, that, days within testified, two three after such City, Missouri, election, she to Kansas to reside an went with un (one year daughter, November married before the filing petition), residing her divorce she was at 1016 Forest Ave City, Missouri, daughter; that, nue in her during Kansas with year temporarily City at times absent from nursing employed while and other work, she was domestic but at all daughter said times she maintained her residence City, Missouri. *10 <1926] in rebuttal: Johnston, testified Clara daughter, Miss
Appellant’s in Chanute. for a time business in the chicken engaged “My mother went there 1915 that she It was in failure. unfortunate was an It living I were My mother and business. engage in the chicken to boarding at We were business. went that together when she engaged in the City. My mother was in Kansas Hotel the Rosalind I she ceased year. knew when about a Chanute business at chicken I ... worked November, It was operations. her chicken places, and it support the two night trying to every day and to prevailing her I had been losing business. got so it was away home; go couldn’t up. gotten so she give it She had along to; just I salary worried get she used so couldn’t she me, and she just back and live finally that she come demanded directly . came after . . She wanted wait until the election. Tuesday first in 1916. I the election the election knew immediately Monday after the She came the first November. apartment we had there during that She came to the election week. give City. came, up When chicken she she decided stay up it decided in Chanute. We talked over. She business my day my mother with me. . . . From' the returned to there home, day. from that apartment City, in Kansas made her just (1916). Mother went back to Chanute a little before Christmas My having get rumpus sister raised a kind of a about rid of all things. those She told mama she would have to come back and at- my understanding my tend to it herself. ... It was when join spend mother went back that I would her and Christmas there. finally I stayed over, went down and until Christmas and came My back. mother returned with me.”
Respecting signing petition of the affidavit to the divorce 12, 1917, Johnston, daughter November appellant, Miss tes- “I my tified: recall the City date mother came to Kansas sign petition. her divorce day That was the we moved to Dur- out (509 ham’s Boulevard, City, Missouri), Gladstone out of Apartment F, 1016 Forest. That was 12th day of November, 1917; that is the date of the execution petition. of this My working mother was Oskaloosa, at the time Kansas. . . . Mother morning. came into My the office that office at that time was 103 East 10th Street. I don’t know day what time of was, my forenoon afternoon, signed mother divorce affi- davit. I I wasn’t with her. . . '. saw her on November morning. some time in That was down I town. saw at lunch. together day. We took lunch After I lunch went to office; shopping.” she went
Mrs. Portia Bodle, daughter of appellant, another testified in re- buttal: “I Chanute, have lived Kansas, my ever since op SupRbme Vol. *11 my mother en- I the circumstance i . remember 1909. . in the summer Chanute. That at chicken business
gaging fall of the next until the business in that She continued of 1915. City Kansas went to At that time mother year, November, 1916. about My daughter. . . . sister my sister, with her home to make her most of the My sister furnished assistance. furnished her financial My for months . . . sister several funds for the chicken business. wasting more time and very seriously mama objecting to been coaxing mama all business, she was money in the chicken with then. In up her her give work make home time to her response my my went to Kansas requests sister, mother to these very days. I few City very By that mean soon after the election. day was in fall of 1916. It was Novem- I know what election Tuesday. my I am 7, 1916. would sure mother went ber That to City, Thursday Friday week, Kansas it must have of that been November, . that would have been the 9th 10th 1916. . . going City 1916, my After to Kansas the week of the election . . mother came back to Chanute December. . some time Mama disposed came back and I of the chickens. was to have taken care chickens, dispose things those of all out there those at the house, Highland, anybody South I couldn’t find in Chanute take early care of those chickens. She came back in December. my I do recall stayed mother at house this after she my place. stayed nights came back to probably my She at house. disposed She days of her chickens within a few after she came back. . . . brought The furniture was my house, down to and had been- (until) there ever shipped Okmulgee. Nothing since it was shipped City. My . . . mother never occupied 1519 (in Highland Kansas) South Chanute, as a residence from the time City went to Kansas November, 1916. Her home from that time on City my was Kansas helped sister. ... I when goods her were moved Highland out of South on December 20, 1916, On December the household furniture ivas moved ’’ out the van. It was placed garage. moved in our petition The divorce by appellant filed November 1917, in the Circuit Court of Jackson County, Missouri, at Kansas City, against her first husband, James Johnston, Malcolm is in conventional form, and, as ground divorce, alleges that “the defendant wholly disregarded his duties the husband of the plaintiff, aban- doned her without means and has absented himself without a rea- sonable cause (1902) since then space for a of more than one whole year providing without giving for her or his address she could communicate with him.” The petition further alleges,: “That resides in Jackson County, Missouri, and has so resided in this State for more than year one whole next be- 1926] defendant, James . that the . . petition; filing of this
fore place State a non-resident Johnston, is Malcolm plaintiff and that the unknown to the of the defendant residence Annexed upon him.” served ordinary process of law cannot be verifying alle- plaintiff, petition statutory affidavit is the signed: petition. affidavit is gations of the Johnston, “Katherine Cox Blvd., 509 Gladstone City, November, day of and sworn to me this 12th “Subscribed before Simpson, “Josephine *12 “Notary (Notarial seal.) Public.” Simpson, notary public County, Mis- Josephine Miss of Jackson appellant, the affidavit of testified in souri, who certified to acknowledgment. 12, my It is dated November “It rebuttal: independent all I this, I of and know have no recollection original testify can is what the document shows. Mrs. and about acknowledgment I personally, me and took her Johnston before “I personally.” cross-examination, On witness testified further: acquainted I personally am not with Catharine Cox Johnston. saw acknowledgment. I once ... It her when took this would be my very difficult for one else to use seal to an ever take acknowl- put edgment. my document, If I seal is on know I it the .there. I testifying original All am from document, my is the and seal on I sign my presence the document. did this, know that if she not in signatnre, that it her because if swore a document comes to signature it, always signature with a me I SAvearthem to the also. I never telephone signature. swear them over the to their I did not petition Kansas, send this Oskaloosa, down to and have sign there, Catharine Cox Johnston her and name then have her read it me. my to Not to . . any- recollection. . say What makes me thing about this my signature affidavit is and being seal there. . . . IYes, say would handwriting was the of Catharine Cox already Johnston. I I have said that saw it, either her write or signature. that she swore that it her She signed either docu- presence my ment or signature, swore to the swore that it was her signature. That I is the best can answer. I have answered it to my ability. best of the IWhat said is I have either saw her write it or that acknowledged signature she. my presence.” her Other testimony, if necessary, opinion. will be referred in the
At the trial, conclusion the Circuit Court County of Sullivan entered a judgment, finding plaintiff “the facts be that had not resided in year the State of Missouri one whole next before November 14, 1917, and that, from year the summer of 1915 until June plaintiff did become a citizen and resident SupRbme Vol. Coubt of Cha- resident and a citizen Missouri; plaintiff was and that Septem- that on Kansas, on June County, nute, Neosho K. James voluntarily abandon plaintiff did 7, 1920, ber voluntarily without she did cause, and that a reasonable
without him apart separate and from continue live a reasonable cause death; and that the year preceding next his space of whole one Reger, and her divorce marry K. plaintiff James engagement alleged marriage her Missouri, and proceedings in Jackson charges made her her Chanute, Kansas, and K. to James one and May, part were all separate suit maintenance Reger, K. property James plan plaintiff acquire same intending good without estate, an manner and his unlawful It Reger as his wife.” was therefore faith to live with K. James plaintiff nothing adjudged by court in this cause take “that right, petition, plaintiff has title interest and that the no land, deceased, property personal property James real Reger, right, property K. in and to the all title interest real, personal mixed, hereby Reger, same ’’ vested in the defendants in this cause. Motions for duly new trial and arrest of were filed plaintiff court, rulings overruled trial to which- exceptions duly saved, appeals were taken and to this court. *13 assigns
I. Appellant findings in error the of the trial court to the effect that the decree the Circuit Court of Jack- son County, Missouri, divorcing appellant from her husband, first. Johnston, procured Malcolm by void because appellant Fraudulent the fraud committed that court. Re- Judgment. spondents, hand, on the other that contend the evidence supports herein findings the of the trial court to the effect that the divorce decree is null and void because of appellant’s fraud on the Circuit Court of Jackson County, Missouri, in that the proof herein appellant shows that was not a resident of Missouri for year whole next before filing the of her petition, divorce one. appellant that did personally sign not and swear to statutory the affidavit, or verification, annexed to her petition. testimony by respondent adduced purpose the showing procurement fraud in the of the divorce decree largely consists depositions of witnesses taken in the State óf Appellant Kansas. ap- parently dispute not does deny that she was a citizen and resident of Kansas on November 1916, and that she voted at the national election held on that Appellant’s date. testimony, read in evidence by respondents, was that she left Chanute, Kansas, and went to “in Missouri, City, days two or three after the election” 1926] RegeR. Réger she bad been and that daughter, unmarried' reside, ber witli
live, or time com at the months” “about thirteen Missouri a resident While Malcolm Johnston. against James suit for menced Chanute, city municipal officers of certain depositions gas show by tended to respondents, in evidence Kansas, read 1916, in house at on or about December until used appar yet testimony those officers Street, Highland South clearly indi charge, in their public records ently based recollection concern personal independent they had no cates ing shown what- other than facts testified them they ac testify did charge. their The witnesses records in No time after the election of tually appellant Chanute saw in they attempt identify paid 1916, or vember did who December, deposit down gas the meter bill took testimony appellant. Elmore, of Mrs. who lived almost being Highland Street, is equally the street from 1519 South directly across Kansas, respecting Chanute, time when left indefinite November, family Mrs. Elmore testified Elmore Kansas, 12th Iola, moved from Chanute “either or 19th November, 1916,” and “the best she remembered” was liv ing Highland family at 1519 South Street when the Elmore moved examination, qualified Iola. Mrs. On direct Elmore her testimony ‘1 stating Somebody Huffman, (cid:127). the name of some name as Highland that, living at 1519 South when allwe moved to Iola November, I don’t think I could state whether Johns Mrs. (appellant) time, ton day was at that we goods loaded our into ’’ car, living Fe Santa the house at Highland; and, 1519 South cross-examination, she further testified: “I don’t remember dis tinctly whether Mrs. Johnston still lived at 1519 Highland South I Likewise, manager when moved.” Coulter, witness furniture, company transfer which moved the High from 1519 South “I Street, land testified: couldn’t state that I (appellant) saw her my about or near Chanute the time van goods moved the from 1519 Highland, South nor am I able to state who ordered the van to move I goods; know don’t Mrs. whether Johnston (appellant) ordered the van or not.” Wolf, The witness apartment owner of the building City, appellant’s daughter, Miss Clara *14 Johnston, July 1, resided from until November 1917; testi (appellant) “I saw her fied: there at the building when she was daughter there her with in apartment. my It impression just merely she visiting think there with daughter. her I when they in Apartment were E (appellant) that she was there a few My months one winter. recollection is that she wasn’t very there so long. just I length can’t recall the of I time. no independent have recollection of Clara Johnston or her mother about when they came Suprehe Term,, Vol. Missouri, oe owner, Wolf, apartment of testified: “The
or left.” Mrs. wife 1916; fall, I mother, Johnston, in fall of mean came Mrs. They July, in nntil fall. moved there in and the mother didn’t come give you day; might cool I cooler, it was weather. can’t it have guess September in My been or October. best would be was a give day.” I can’t Mrs. Denson, little later than that. who re apartment building, sided at Wolf “I the time testified: re seeing (appellant). member I seen Clara’s mother have her Miss apartment large mother around Miss Clara’s while she lived in the apartment, you the small one. I tell couldn’t whether her visiting Clara, living mother was I many there. can’t how tell apartment. times I saw the mother inquired come I never Johnston’s, where mother’s, Mrs. real home was. I don’t know.” Opposed foregoing testimony by respondents to the adduced is the testimony appellant daughters, testified, her two who sub- stance, Chanute, Kansas, days within appellant left two or three 7, 1916, held on November with the intention and the election daughter, purpose residing with her unmarried Clara Johns- Miss ton, Missouri, City, Jackson daughter continuously resided such until after the divorce de- February 13, 1918, appellant being only cree on tem- City, visiting daugh- her porarily absent while married employed as a domestic at ter while servant Oska- Chanute Appellant’s loosa, places Kansas, and in Missouri. evidence other during kept all that, times, furthermore tended to such her show belongings personal daughter’s place trunk her of residence City, in Kansas Missouri. specifically place person of residence of defined statute (Sec. 7058,
of this State S. 1919), place R. follows: “The where family any person permanently shall State, reside in this place any person having family generally where no lodge, shall place shall be person deemed residence persons re ’’ spectively. judicially It been ruled in has this State that the inten tion, determination, largely mental of a determinative of place his v. Dayton, 678; residence. ex rel. [State Stone Stone, App. Howey 134 Mo. Howey, (Mo.) S. W. 450.] Respecting making of the affidavit annexed to the peti- tion, daughters the two positively signature identified the appellant, thereto as being handwriting. her Miss Johnston, appellant’s Clara daughter, unmarried testified that her City., mother came office Kansas on November 1917, affidavit, date the divorce which was also the date daughter apartment which the moved from the at 1016 Forest Ave- to 509 nue Josephine Gladstone Boulevard. Miss Simpson, the notary public appellant’s who certified to divorce affidavit, testified that, *15 1926] 1327 talcing affi- of the of the independent recollection no had while signa- bearing affidavit, original the of davit, yet an examination appellant either her that thereon, convinced seal and notarial ture swore to and acknowl- presence or in witness’s signed affidavit The witness testified presence of witness. in the edged signature acknowledgments or over affidavits never took that she further Oskaloosa, petition not the divorce did send telephone, that she by appellant. signed there Kansas, to be procurement of fraud in the proving the burden of think that
We marriage to subsequent appellant’s decree, and that the respondents. upon the illegal, rested was void James good inno faith, presumption is favor of Generally speaking, the is honesty, to be rule that fraud it is said wherefore cence of proof, the burden presumed, but must be established not R. C. party alleging fraud. L. proof being p. [12 424.] marriage shown, regular irregular, “Where a has been whether strong* and the presumption legality, raises of who as law a its burden . . . illegality serts its amust assume the of that issue. having proof required person plain, The of to make the burden pressure against presumption legality, the constant of the of the truth marriage legal.' of law and fact that not was evidence to repel presumption strong, and satisfactory. must be distinct Thus, that, if marriage, it is claimed the time one living spouse, a it is him incumbent who attacks the marriage ground presumption to overcome the its this validity, by establishing marriage, respects the former in all con formity to law, spouse that the former living at the time the second into, entered undivorced.” R. C. [18 pp. 427, L. 428.] thoroughly rule is established in this that, in State order to disregard vitiate or competent court of jurisdiction, whether state, upon ground another procurement fraud in the judgment, such fraud must be by clear, cogent established strong, convincing evidence, leaving no room for reasonable doubt of its existence. v. Lieber, 239 [Lieber 1, 31; Simms, Mo. McFadin v. Mo. Greer, Bullivant v. App. 328.] carefully
We analyzed have the record herein and are drawn to conclusion the evidence of fraud on part of procurement in the against husband, divorce decree her first Malcolm Johnston, clear, strong, so cogent and convinc- ing as to leave no reasonable existence; doubt of its on the other hand, study the record herein raises considerable doubt in our minds that guilty of fraud procurement divorce decree. m, To Supreme Missouri, Yol. 316. [October Court oe respondents why think we reasons other But there are II. County di- Jackson integrity challenge the cannot attack *16 this, attack regard proceeding. We partition in
vorce decree collateral, as a decree upon divorce respondents by made herein upon such direct, attack distinguished from a Attack. Collateral by an- their respondents, The divorce decree. di- equity, or that in relief not affirmative herein, do ask swer trial aside; does the set neither annulled, or decree be vacated vorce divorce decree or by judgment herein, set aside annul court, its grant re- Jackson by the Court of Circuit spondents any equitable relief. affirmative upon a collateral, direct, attack and a
The distinction between a pages 838, judgment clearly Ruling Law, is thus stated in 15 Case judgment 839: “A a has been defined mean upon collateral attack challenged, proceeding integrity of a is which the except those made in the wherein rendered or action by declaring appeal, except- brought judg- suits to obtain decrees proceeding brought ments be A void ab initio. ... to cancel a person deed and to a a deceased obtain division the estate of theory divorcing a decree such from his wife was decedent void direct, not but a only collateral, constitutes a attack proceedings judg- ... A a decree. direct attack on attempt reform, vacate, enjoin ment is an amend, correct, execution of the proceeding same purpose.” instituted for that foregoing distinction between a collateral and direct attack upon judgment recognized by has been court, this in banc, in Lieber Lieber, v. 239 Howey Mo. l. c. Howey, S. W. 450, l. c. in both of which cases by the action under review had an us (as independent purpose in the at bar), case directly and did not contemplate or seek the annulment or cancellation of a divorce decree by entered competent court of jurisdiction, only incidentally validity involved integrity of such (as divorce decree in the bar). case at Under our (Sec. statute R. S. 1919), the several cir- cuit courts of given “jurisdiction this State are in all cases of di- vorce,” so clearly the Circuit Court of Jackson County ju- risdiction subject-matter of divorce. The divorce decree, or judgment roll, of the Circuit Court Jackson County, which re- spondents herein, attack recites its face that the defendant there- “lawfully summoned publication, proof of which has been made and filed,” that, furthermore hearing “after the evidence, allegations court plaintiff’s finds petition are true.” One allegations plaintiff’s petition so found to be true the Cir- cuit Court of Jackson County jurisdictional was the allegation “plaintiff resides in Jackson County, Missouri, and has so resided y. 1926] filing this year next before one whole more than for State found petition so the divorce allegation of another petition;” and Mal- defendant, James “the circuit true said . and the ordi- . . this State Johnston, is a non-resident colm finding and upon him.” be served nary law cannot process juris- those County, upon of Jackson Circuit Court judgment of the if and, attack, against collateral facts, final conclusive dictional There- action. direct some challenged must be reached attacked, in- challenge the question or be heard to fore, respondents will County Circuit the Jackson
tegrity of the divorce decree and con- is final decree partition proceeding, because against attack. clusive collateral an action Howey Howey, S.
The case of W. to be by plaintiff, who claimed alimony, divorce and commenced' The de- Circuit Court. County defendant, wife of the Jackson *17 prior decree adjudicada, a answered, pleading as res fendant therein defendant Florida, Polk wherein of the Circuit Court of granted reply, in which plaintiff. a Plaintiff filed a divorce from court was charged by the Florida circuit that the decree rendered fraudulently procured by void defendant because said decree was through fraud de- imposition upon was an Florida court the the allegations of court, bane, This in therein ruled that the fendant. direct, upon the reply collateral, the constituted a and not a attack and, appearing that the Florida circuit decree, Florida divorce subject-matter jurisdiction court had of divorce and that there the process upon court, in that was service of the defendant that there- subject in fore the Florida decree was not to collateral attack the court, case, Graves, speaking courts In for J., of this State. that this opinion, in a “If clear well-reasoned said: this be a collateral judgments attack, then as states, under our rules sister we apply involving must our attack in rule collateral cases collateral judgments. attack on domestic Under the Ftederal law we must treat just judgment of a sister state the we'treat one of our Our own. that, judgment judgment subject-mat- rule is if the roll shows a on a jurisdiction ter court, within the upon shows service good defendant, against then it is a collateral attack. In other words, judgment if the is to be attacked for infirmities apparent not upon record, face of the then it must be reached some direct cases). (Citing action” “If we are to measure this of a sister state as would measure one our judgments, we own then jurisdiction say that, we would have where the in particular dependent upon case is extrinsic facts to be shown, the jurisdiction in favor of determination of those facts is final” (Citing eases).
316 Mo.—84. Missouri, You. SUPREMECourt majority opin purport and effect of the seems to be the
Sucb also 54, where Lieber, 239 l. c. court, banc, in in Lieber v. of this ion decree, regular upon upon made collateral attack was jurisdiction in State of competent by a court of face, its Judge speaking majority opinion for the Ilinois, in which Woodson, elementary “it that a ren court, announced this jurisdiction parties subject- having dered a court proper proceeding, some is not matter, unless reversed or annulled in respect impeachment validity, veri open to its contradiction any binding collateral ty, thereto, effect action proceeding.”
So, Deacon, in Crane v. 253 S. W. which was an action to alleged procured by set decree fraud aside of divorce to have been plaintiff court in therein was not a resident of county in had, which proceeding the divorce were decree which action, therefore, decree, was a direct attack such divorce J., speaking court, may Division Two said: “We White, plaintiff’s petition concede claim that in a divorce suit the must regarding residence, state the facts must swear give jurisdiction. alleged them order to the court These facts are alleged petition; the same as issue other facts in the it is complete allegations defense to show are true. ... So trial court must have considered and determined the facts jurisdiction, just passed upon relation as it other facts issue. presume We cannot trial court failed of duty its in that respect; granted it could not have a decree of divorce plain- unless the tiff had made out a proof ease involved the that she was a resi- County. dent of . St. Louis . . The courts of this in a State, *18 upon collateral judgment, attack a have made no difference between jurisdiction the facts which confer other facts to be deter- (Citing mined in authorities). the case” “Likewise, there is no dif- in upon ’ference a jurisdictional direct attack a between proven necessary facts other facts support to be of the cause of action.”
To like Hester, effect are Hester v. 13, 103 Miss. and McCormick v. McCormick, Kan. l. c. Respondents opinion cite our v. Lovelace, Hinkle authority for their contention that the divorce by decree entered
the Circuit Court of County may Jackson be collaterally attacked in partition the instant proceeding. The Hinkle ejectment ease was an action, wherein defendant claimed plaintiff’s cause action by barred the Statute of Limitations, having defendant been in con- open tinuous, possession adverse of the land in controversy un- der color of title twenty-four for more than years. Plaintiff con- tended that she was under disability during coverture most of 1926] Limitations had not the Statute of run and, therefore, that time,
said appeared was twice It of action. her cause against husband, first divorced from her that she had been married, possession Defendant came into shortly had remarried. thereafter plaintiff’s marriage. Defend- controversy after second land in ejectment action, attacked the decree di- answer in the ant, by his ground husband on the that she had her first vorcing plaintiff from petition statutory divorce, annexed to her affidavit not made by made her behalf next friend but that such affidavit had been petition), and, therefore, upon of the divorce (as the face disclosed grant by jurisdiction without decree reason of court was divorce infirmity, plaintiff’s marriage nullity second was a wherefore against had run her causa void, and Statute of ac- .Limitations husband, of her ejectment from the death first tion in occurred remarriage. apparently While shortly we held case subject ejectment to collateral decree was attack that the divorce opinion our yet analysis infirmity discloses that action, close appeared attacked proceeding divorce therein face of (i. proceeding e., upon the face of record such divorce the di- extrinsically. distinguishes and not That fact petition), vorce bar, Howey Howey, supra, and from the case case at Hinkle infirmity appears record, face no wherein proceeding under roll, of the divorce attack.
Furthermore, respondents parties priv- herein are nor neither proceeding and decree their which, ies to the answer here- in, they attempt to attack. The proceeding to such divorce appellant herein, (then were Catharine Johnston), and her husband, first James Malcolm Johnston. Respondents, appellant’s who are the heirs-at-law of Attack husband, second Strangers. Reger, strangers are utter to such pro- ceeding and the decree rendered therein in the Circuit Court of County. 9 Ruling Jackson In Law, page Case it is said: “The generel strangers rule the record standing have no on which application base an to vacate judgment, so unless authorized n ordinarily statute, judgments applies to and decrees of divorce, in- foreign cluding country. Thus, those rendered while the in- may indirectly terest of the children of the and from a sen- timental reason be divorcing affected decree their parents, still they have no will such interest as enable them to maintain a bill to such a So, set aside decree. where a procures woman a divorce from subsequently her husband and' remarries it has been held that *19 of the leaving the death second husband an estate which the wife surviving spouse to is entitled share as the if her divorce and subse- remarriage quent valid, were the heirs of the second husband have Supreme Missouri, Yol. oe judgment the proceedings to standing to vacate
no maintain ’’ divorce. wbo were plaintiffs, l. c. Tyler Aspinwall, Conn. In (as in the second husband deceased tbe of defendant’s heirs-at-law by which of divorce set a decree equity to aside bar), case at sued in living the husband, at her first who defendant was divorced ground plaintiffs’ suit, upon the of the time the commencement per fraud and divorce decree procured had such defendant subsequent it claimed that by reason jury, whereof plea illegal filed a plaintiffs’ and void. Defendant ancestor was plaintiffs’ alleging jurisdiction had no abatement, that the court party to action of plaintiffs suit none because plaintiffs no therein. court ruled question, interest The plaintiffs’ maintainable, saying: ques “The suit was not real power superior possesses tion this case is not whether the court judgment grounds of divorce in question, set aside alleged complaint; but it in not is whether court erred power exercising plaintiffs. judgment of these favor plaintiffs open peculiar which seek to one of character. It personal parties establishes the status to it in a particular highest importance which parties was of the to the the com munity. They single had been married. It made them and unmar judgment can, ried. If any such under circumstances, be re opened at suit stranger, of a reopened' cannot be at the plaintiffs. suit Its consequences, if harmful to them, are give too remote and indirect a character to them cause of action. not called power to exercise this at the instance parties. such give Courts are instituted to parties relief to whose rights give have been invaded, and to par instance ; rights ties and a whose have not been cannot invaded be heard complain if the court refuses to act at his righting instance in wrongs of another who seeks no redress. The courts practically are holding unanimous that it is not error refuse to exercise the power question, here in at the instance of a stranger mere rights whose are not at all affected he seeks to have set aside” (Citing authorities). like To effect is Richardson King, 157 Iowa,
If respondents herein can be said to be affected or harmed whatso- ever reason rendition of the (to divorce decree they which privies), are nor they neither it is clear are not affected respect any rights they harmed in had preexisting rendition of such divorce decree. At the time of the rendition of decree, respondents legal had no equitable right, title or, property subject interest in the real which is the of the instant partition rights suit. Their interests in the real estate herein *20 Reger. 1333 v. .1926] Reger, K. from James inheritance involved were derived ques decree long of the divorce after the rendition his death and rendi subsequently to the having Hence, rights tion. their accrued regarded mere must as decree, respondents tion of the divorce it col they to attack strangers will not be heard to that decree and [Abington v. laterally upon ground procurement. fraud its Townsend, 615, 616, 271 Mo. l. and cases there c. cited.] Wagoner, 287 given Wagoner v.
¥e have due consideration to Bell, 625; Bell 181 U. S. 567; Mo. v. Dorrance, Dorrance v. by respondents. 175; Streitwolf, cited Streitwolf v. U. S. appears parties It each cited cases were the same that the to of those parties proceeding under attack therein, to the divorce herein, point ruled hence those did not involve us name- cases ly, right stranger proceeding to attack of mere to the divorce therein. regard the decree divorce rendered We the cited cases as inapplicable bar, to the case at wherein the who seek to at- utter, proceeding integrity strangers tack the are proceeding. Appellant assigns
III. admission, appellant’s error over ob jections, parol respecting the antenuptial agreement, evidence al leged in appellant the answer to have been made between and James K. Appellant alleged furthermore agree- contends that
ment, all, if made at was without valuable consideration Marriage support it, legal and that it did not amount ato Settlement, jointure. equitable best, parol At evidence adduced by respondents respecting making agreement, of such and the exceedingly substance terms thereof, hazy, obscure and uncer (without Assuming tain. deciding) parol agreement that a can be allowed to defeat or appellant’s right bar dower, the evidence of by respondents wholly fered fails to show that appellant, prior to and in contemplation marriage with Reger, James K. any into entered agreement contract or husband, whereby her intended she was to receive, actually and did receive, any personal estate, real or to take ef fect after the death of her husband, way jointure, provision as a support for her during expressed the term life, of her in full to be discharge of all 33(1, her dower, contemplated by claim of Section Revised Statutes 1919. It not shown adduced evidence here in that anything received as a consideration for the al leged agreement; words, other it is valuable shown consideration moved support alleged agreement, made, if agreement, therefore the void for want support Stewart, consideration to it. v. [Moran 173 Mo. l. c. Furthermore, the evidence herein is insufficient to 217.] establish legal either equitable jointure, and hence is insufficient Supreme oe You. right statutory (or her elect to take dower appellant’s
to bar
estate.
dower) in
deceased husband’s
in lieu of
child’s share
King, 184 Mo. Moran
437; King v.
Mowser,
87 Mo.
[Mowser
Stewart,
date expiration of until the and taire effect absolute not become cree does said time. months six rendered Any or decree of judgment “Sec. conformity United States by publication any state of the
service given faith and credit this full thereof shall the law with persons regard now force shall have the same state, and of this state to become a resident resident or hereafter heretofore state, judgment a court if had been said and considered and persons, be treated shall, to the status of all of the courts this state of the as a given force same said bears.” date which applicable insists that aforesaid are
Appellant Kansas statutes state, rendered in only of divorcement the courts to decrees right party, who has been do of a and such statutes not affect remarry foreign state, to in another and decree rendered divorced divorcement; time of the decree after the rendition prohibition of words, appellant contends that the other *22 remarry upon right party a to a action to of divorce statutes the the of divorcement six months from the date of decree has within affect, nullify, effect and does not a no extraterritorial force or marriage party the laws of subsequent of a divorced under though marriage subsequent such within even be contracted the State of Kansas. accepted
The rule announced and as authoritative this and other remarriage party is statute, prohibiting states that a aof within a period granted fixed has party, divorce been such has no effect, applies only extraterritorial force or a statute where such granted has the divorce been within the wherein state such statute Marriage Bishop Divorce, 869; was enacted. on and sec. [1 R. C. L. App. Green McDowell, 529, l. 530, c. and cases statute, there of prohibit our own cited.] State does remarriage party the of granted either to a State; within this nor does our fix period statute of granting time after the of a di during vorce which remarry. either shall not The divorce de granted by cree herein the Circuit Court of Jackson County, Missouri, imposed upon no restraint appellant’s right to con tract marriage a new any at time after rendition, its and our Missouri places upon statute no restraint right. such prohibitory provi sions being of statute, without Kansas extraterritorial force and effect, do not modify affect or the decree of divorcement by rendered the Jackson County, Missouri, court, circuit and therefore the Kan placed sas statutes upon no right restraint herein to remarry at time after the Missouri decree became final and con- Supreme Missouri, Vol. oe Court in tbe Circuit rendered decree was Missouri divorce Tbe elusive. February 13, at City, Kansas on at of Jackson Mo., 1911, p. court. January, 1918, term 174.] of said [Laws January term and writ of said no appeal was taken therefrom
No rendition of such decree sixty days after the within error issued Missouri divorce and (Sec. 1811, 1919), R. therefore S. parties thereto, and their final and conclusive decree was single persons determined, was fixed and unmarried status as remarriage. appellant’s June the date of that, while Missouri divorce decree respondents But contend given full credit Kansas under terms of must be faith and 1915, yet Gen. Stat. Kansas such section of Section “shall have specifically provides that Missouri decree statute regard persons now or heretofore resident or here- same force judgment of this state as said had been after to become resident if by state, shall, to the rendered this status oí all gimen the same persons, be treated and considered as a force state the courts the date which said Respondents argue meaning bears.” and effect of said Section 7'594 of all persons, of the Kansas be that the di- statute to status publication decree vorced rendered service a court though persons Kansas, outside the State of the same been divorced decree which Kansas, decree does not become absolute take under law effect of Kansas until the ex- piration rendition, of six months the date of its and hence that marriage either if in Kansas within party, pe- contracted said divorcement, riod of six months after the rendition of the decree of may wherever unlawful such decree have been rendered, void. meaning purpose statute; "Wedo not so view give can nor we to such statute the technical and strained construc- meaning tion respondents seek to ascribe to it. Courts always are reluctant bigamous, to hold a to be and therefore *23 illegal, statute, unless the under which it is claimed that the marriage bigamous, clearly is unequivocally legislative in- manifests tent to end. aptly “Marriage It has been said: existed before statutes were enacted respect regarded with thereto. It is with favor by law, and statutes should not be construed as to so make a mar- riage null unless legislative unequivocal.” intent is clear Blake, 44, [Woodward v. 38 N. D. 45.] purpose and meaning of the statute, supra, was dis cussed by supreme and ruled in of that state McCormick McCormick, Kan. determining l. c. in the effect to be given, statute, under such to a Missouri divorce upon decree rendered service of publication, it was perfectly wherein said: “It clear that this statute was recognition intended to make the and enforce- 1926] Reger, obli- service foreign upon based substituted divorce decrees
ment option decision in Haddock v. in this state. left gatory within give to Haddock, S. to each state to U. decrees efficacy they to, entitled consistent may its borders own whatever public Legislature, and such policy, exercised its placed judgments basis of our own decrees were the same court, . Missouri courts. . . The of the had by publication, was as effectual as if it been rendered on service operated marriage tie, personal It and ab- service. to dissolve the duty. party every right and The defend- solved each marital longer plaintiff’s wife, ant in that each one was as no suit marriage, they each other free as before and thereafter bore toward marriage as if same relations never occurred.” given foreign We due decisions have consideration to the several jurisdictions by respondents support cited of their contention that marriage Reger, contracted within and James derogation Kansas, the State of null and void because most, if public all, statutes and that state. In not policy of appears that one to the respondents, cases cited remarriage) of decree, (prohibiting divorce order to evade the laws granted, the state wherein the divorce was left such state for the purpose state, having remarried, remarrying and, another prior returned for a to the wherein domicile state divorce granted. distinguishable upon cases, respondents, Such cited are the facts from Here, ruled, the case at bar. as we have the record of County the Jackson Circuit Court shows its face that such court found and determined that was a resident of Missouri more year than next one whole before the commencement of di- vorce action and that she was a resident of Jackson Mis- souri, at the time of the rendition of final therein, after which, under single the laws of she was a woman and was remarry free in this, any other, state; hence, appellant evaded no law of this State when she remarried in Kansas. Neither did appellant, attempt in remarrying, evade, any evade or law of Kan- sas, for such was contracted and solemnized within the borders of that state.
A
case which
nearly
the facts more
resemble
in the
those
instant
Sparks
case is
v. Sparks, 284
S. W.
Kentucky
wherein the
of Appeals ruled that
Indiana, prohibiting
a statute of
party
ob
taining
upon publication
a divorce
from remarrying
service
within
years
two
after the rendition of the
judgment,
applies only
to citizens of Indiana
granted
and to divorces
Indiana,
and does
apply
party
to a
granted
to a
Kentucky,
was at Kentucky
time a resident of
and remarried in Indiana
*24
years
within two
after the
Kentucky
rendition of the
divorce judg
Supreme
Term,,
of Missouri,
You. 316. [October
supporting
Phillips
ment. Other cases
our conclusion herein are
v.
5;
20
Madrid, Me.
v. Bullock,
Bullock
122 Mass.
Dudley
and
Dudley,
J., not sitting. City Gate National Bank, Appellant, E. A. Bunton al. et S. W. 375. One, April 11,
Division Contradictory EVIDENCE: Extra-Judicial Statements. Evidence tend- ing to previously show that defendants had made statements inconsistent testimony trial, with their tending at the further their to show afterthought, merely go defense credibility was an to their as witnesses. Liability by 2. NEGOTIABLE NOTE: of Indorser: Obtained Fraud of Negligence. Maker: Notwithstanding signed the accommodation indorser $25,000 note on, requested by sign sued if he was the maker note, to indorse $5,000 and the maker showed him note and he read it intended only note, fraud, the maker trick or with- some on, knowledge indorser, $25,000 out the substituted note for sued indorser, thereby misled, intending and the ing while deceived and and believ- indorsing $5,000 note, $25,000 note, that he was and in indorsed ordinary leading up his conduct his indorsement was in exercise care, for note, payee, payee although indorser is not liable to value, knowledge maturity, received note before its without deception practiced upon the maker. fraud indorser Payee by Delivery -: Maker: 3. Agency. Indorsement Obtained Fraud: negotiable note was obtained Where the indorsement of knowingly maker, .deception trick and of' and the did not indorser it, intentionally validity give appearance did. not indorser maturity trust, although agency it the maker delivered before an create amount, payee, a less a note for to the indorser understood supposed signing, delivered. he he would be so promisory inception Forgery. aof Akin Fraud in the 4. -:-: note is a may proved closely forgery; under much so that akin to so note, negotiable obtained plea of non est factum. The indorsement