195 S.W.2d 669 | Mo. | 1946
Prohibition to prevent ruling on a motion to vacate a divorce decree.
The record sought to be vacated is, as follows:
"77th day of the June Term, 1942.
"Now on this day comes plaintiff in person and by attorney and defendant appearing by attorney files Entry of Appearance and Answer in the above entitled cause.
"This cause now coming on for trial is submitted to the court upon the pleadings and after having heard the evidence the court finds that the allegations in plaintiff's petition are true; that plaintiff is the injured and innocent party and entitled to the relief prayed.
"Wherefore, it is adjudged and decreed by the Court that the bonds of matrimony heretofore contracted between plaintiff and defendant be and the same are hereby dissolved and for naught held and plaintiff forever freed from the obligations thereof.
"It is further ordered and adjudged by the court that the plaintiff be and she is hereby restored to her former name of Mrs. William D. Clark.
"It is further ordered and adjudged by the court that the costs herein be paid by, and that execution issued therefor against the defendant."
The motion to vacate was filed at the June Term 1944 by the successful plaintiff in the divorce action. It alleged that no summons was issued or service had upon the defendant; and that no testimony was heard in said cause at the courthouse at Independence in the courtroom therein established for the trial of causes in said Independence Division. It is further alleged that the special judge "left the courtroom in the Courthouse at Independence, Missouri, which was the regularly designated place for holding Court and for the trial of *227 causes in the Independence Division of the Circuit Court of Jackson County, Missouri, and went therefrom to the law office of Henderson, Henderson Swofford, in the Scarritt Building located at Ninth and Grand Avenue in the City of Kansas City, Missouri; that the above entitled cause was, in said law office, called for trial by the said Harold Marshall; that there were present in said law office at said time and during the purported trial of said cause the said Harold Marshall, the acting Court Reporter, the plaintiff and counsel representing both plaintiff and defendant; that no other Court official from the Independence Division of the Circuit Court of Jackson County, Missouri, was in attendance or present in said law office; that at said time and place the defendant, by [671] his counsel attempted to file an alleged Entry of Appearance and an Answer with the said Harold Marshall; that thereafter Frances Clark Green, the plaintiff in the above entitled action, was sworn and testified; that said plaintiff was the only witness at said hearing or pretended trial of said cause; that at the conclusion of her testimony, the said Harold Marshall attempted to grant the plaintiff a divorce as prayed for in her petition."
The motion also alleged that the petition for divorce had been filed on August 28, 1942; and that the following court rules were then in effect: "(a) No divorce case shall be tried before the Term to which it is by the statutes returnable; (b) Until further order, no divorce case will be heard upon Entry of Appearance in this Division before the Term to which it would be regularly returnable under the statutes." Plaintiff's motion further alleged that the divorce decree granted to her was void for the following reasons:
"(1) No summons was issued in this cause and no service had upon the defendant;
"(2) No Entry of Appearance or Answer was legally filed in this cause;
"(3) The purported trial of this cause was held at a law office in Kansas City, Missouri, and at a place other than the regularly established place for holding trials in the Independence Division of the Circuit Court of Jackson County, Missouri."
[1] Plaintiff contends that for these reasons the judgment was not rendered by a duly constituted court and void ab initio. However, the judgment is regular on the face of the record, and the motion did not dispute its recital that "court met pursuant to adjournment," or that Harold Marshall had authority to act as judge thereof. It alleged that he left the courtroom in the courthouse and heard the evidence in plaintiff's case at the office of her attorney. The motion showed that plaintiff testified there in the presence of her attorney and the attorney for relator, the defendant therein. It also showed that his attorney delivered an Entry of Appearance and an Answer to the special judge. There was no claim that these papers were not *228 properly lodged with the clerk before the judgement was entered. Therefore, Section 876, R.S. 1939, Mo. Stat. Ann., did not require the issuance of summons.
[2] While it was irregular to receive these papers for filing and to hear the evidence outside the courtroom we do not think it can be held that this deprived the court of jurisdiction to enter judgment in the case. We had no statute prohibiting a court from temporarily sitting to take evidence outside the regular courtroom provided in the courthouse. "In the United States the courts generally lean toward the view that in the absence of an express constitutional or statutory provision, a divorce case may be heard in camera." [17 Am. Jur. 319, Sec. 338.] Our new code expressly authorizes filing of pleadings with the judge (Sec. 5(e), Laws 1943, p. 358; Sec. 847.5(e) Mo. Stat. Ann.) and to hold trials outside the regular courtroom, even in another county, by agreement. (Sec. 90, Laws 1943, p. 382; Sec. 847.90 Mo. Stat. Ann.) In this case, the hearing at which plaintiff testified was not outside the county. Likewise, Sec. 9703, R.S. 1939, Mo. Stat. Ann. provided for hearing of juvenile delinquency cases in the Circuit Court "in the judge's chambers or in such other room or apartment as may be provided for such cases." Plaintiff's argument would make these provisions of the new code and the Juvenile Court Act unconstitutional.
[3] This argument is that Sec. 22, Art. VI (Const. of 1875 then in effect; see also Sec. 6, Art. V, Const. of 1820) provided that the Circuit Court "shall hold its terms at such times and places in each county as may be by law directed"; and that this is a mandatory requirement which makes the judgment herein void because it is based on a hearing held in a place not directed by law. Plaintiff cites Sections 2165 and 2181, R.S. 1939, Mo. Stat. Ann. as requiring the holding of court only in the Courthouse at the City of Independence. Plaintiff also cites the 1905 Act, Laws 1905, p. 121, creating the Independence Division of the Circuit Court of Jackson County, and Sec. 2007, R.S. 1939, Mo. Stat. Ann. providing: "The sitting of every court shall be public and every[672] person may freely attend the same". Section 2165 restates the constitutional provision and the sections following it, including Section 2181, merely fix the opening days of terms in each county, designating places (cities) only in those counties in which terms are authorized to be held in more than one place. This does not show that a hearing of evidence outside the regular courtroom destroys the court and makes its judgment a nullity.
In Bouldin v. Ewart,
Likewise in Kane v. McCown,
[4] Plaintiff in support of her position that this divorce decree was void ab initio, and that her motion to vacate was therefore properly filed at a subsequent term because there was no jurisdiction to enter a decree, relies on State ex rel. Coonley v. Hall,
The policy of this state to place time limits on the review of divorce decrees is also shown by Sec. 1524, R.S. 1939, Mo. Stat. Ann., prohibiting reversals, annulments and modifications except on appeals taken during the term at which they are entered or on writs of error issued within sixty days. There was no attack of any kind upon the judgment herein at the term at which it was rendered. [See State ex rel. Conant v. Trimble,
[5] Plaintiff's real claim which appears not from the motion to vacate, but from the briefs and affidavits filed herein, is that she is dissatisfied with a property settlement previously made under which she received $54,141.25 in lieu of a claim for alimony and $2000.00 for attorney's fees. This settlement is no part of the divorce case. If it were it would be collusive. [Bishop v. Bishop (Mo. App.), 162 S.W.2d 332.] "`The law is too well settled in this state to admit of dispute that husband and wife, in contemplation of a separation and divorce, may, by valid contract between themselves, settle and adjust all property rights growing out of the marital relation, including the wife's right of dower and claim for alimony, support, and maintenance. . . . Postnuptial contracts of separation are not unlawful, and such contracts when lawfully made, are sufficient to bar alimony and dower.' North v. North,
[6] The preliminary rule in prohibition heretofore issued is made absolute. All concur.