Stansbury v. Stansbury, 118 Mo. App. 427

Stansbury v. Stansbury

118 Mo. App. 427 | Mo. Ct. App. | 1906

JOHNSON, J. —

Action for divorce. The petition does not allege plaintiff’s residence in the State during the period required by statute, Revised Statutes 1899. section 2924, nor that the offenses of which she complains were committed within this State or whilst one or both of the parties resided within this State. Defendant did not attack the petition by demurrer or plea, but answered to the merits and supplemented his answer with a cross petition. At the hearing, plaintiff testified that she and defendant were married in Stanberry, Gentry *430county, in 1897, and. that both had lived there continuously to the date of trial. This fact was not denied by defendant and it was further shown that the alleged acts of misconduct on the part of the defendant occurred at Stanberry. Plaintiff was granted a divorce and a judgment for alimony. Defendant in due time filed his motion in arrest, in which for the first time he raised the question of the jurisdiction of the court over the subject-matter. The motion was overruled and defendant appealed. There is, in the decree entered, a general finding “that the allegations of plaintiff’s petition are true and that plaintiff is the innocent and injured party and entitled to the relief prayed for in her petition,” but there is no express finding therein of any of the facts, the existence of one of which is made elemental to the cause of action by the terms of sec. 2924, R. S. 1899, which provides that, “No person shall be entitled to a divorce from the bonds of matrimony who has not resided within the State one whole year next before the filing of the petition unless the offense or injury complained of was committed within this State or whilst one or both of the parties resided in this State.”

These facts seem to bring the case squarely within the rule followed by this court in Collins v. Collins, 53 Mo. App. 470; Carter v. Carter, 88 Mo. App. 302; Johnson v. Johnson, 95 Mo. App. 329. It is not denied that the existence of one of the facts mentioned in the statute is an indispensable element constitutive of the right to maintain an action for divorce and that without it the whole proceeding is coram non judice for lack of jurisdiction over the subject-matter, but it is insisted by plaintiff that the principle followed by the St. Louis Court of Appeals in Smith v. Smith, 48 Mo. App. 612, should be applied here to sustain the jurisdiction, because the jurisdictional facts under consideration are indisputably established by the uncontradicted evidence appearing in the bill of exceptions, which was filed and made a part of the record.

*431In that case, there was no averment in the petition relative to plaintiff’s residence, bnt in the decree there was an express finding “that the plaintiff is and has been for at least one whole year last past previous to the commencement of this action a resident of the State.” The Court, speaking through Judge Eombatjer, said “even if in a proceeding for divorce, courts are to be held as exercising special statutorypowers, yet it is sufficient to make their judgments valid if their jurisdiction appears from the entire record and it is not essential to the validity of their judgments that all jurisdictional facts should appear from plaintiff’s petition.” Accordingly, it was held that as the jurisdictional fact was adjudicated in the decree, its omission from the averments of the petition did not invalidate the judgment. It will be noticed that the case did not reach the St. Louis Court of Appeals bj appeal or writ of error and, therefore, that tribunal was not dealing with a case brought to it by a direct proceeding, but with a judgment that had become a finality in the ordinary course of procedure.

In the case of Werz v. Werz, 11 Mo. App. 26, Judge Thompson, appears to have entertained the opinon (in which we concur) that with respect to actions for divorce the circuit court is to be regarded as exercising a general jurisdiction on a special statutory subject “according to the course of the common law — by which is meant according to the usual course obtaining in courts of common law and courts of equity,” rather than as a court of limited and special jurisdiction and in an attack upon a final decree or judgment entered in such case, made in other than a direct proceeding, i. e., by appeal or writ of error, the same presumptions are to be indulged in favor of the jurisdiction of the court as in cases where the court acts in virtue of its general powers and according to the course of the common law. [Johnson v. Beazley, 65 Mo. 250.] This, evidently, was the view taken by Judge Eombauer in the Smith case and, in reaching the conclusion by which effect is given to the assumed ver*432ity of the recitals in the decree, in an attack delivered out of the ordinary course, he instanced with approval the case of Hansford v. Hansford, 34 Mo. App. 271, wherein it is held that, “Residence within the State for a year next preceding the institution of the suit is in all but the excepted cases a jurisdictional fact which must be averred and proved and a decree rendered upon a petition lacking this allegation is void when questioned in (direct proceeding between parties to the decree.

We are of the opinion the principle followed in the Smith case does not obtain when the record is before the appellate court in a direct proceeding and had the decree before us recited the jurisdictional fact, nevertheless, its omission from the allegations of the petition would invalidate the whole proceeding.

It is so well settled that facts necessary to the conferring of jurisdiction over the subject-matter must be pleaded as well as proven that further discussion of the subject would he superfluous. It is equally as well settled that the question of jurisdiction may be raised at any stage of the proceeding and, therefore, its appearance for the first time in the motion in arrest was timely. [Planing Mill v. Short, 58 Mo. App. 320; Bray v. Marshall, 66 Mo. 122; Stone v. Corbett, 20 Mo. 354. The judgment is reversed and the cause remanded.

All concur.