Opinion
No. 21614.
November 5, 1951.
APPEAL FROM THE JACKSON CIRCUIT COURT, JACKSON COUNTY, EMORY H. WRIGHT, J.
M. D. Campbell, Jr., David R. Derge, Kansas City, for appellant.
Nelson E. Johnson, C. E. Thomson, Kansas City, for respondent.
This is a suit in equity, tried in Division No. 1, Circuit Court, at Kansas City, wherein plaintiff sought a judgment setting aside a decree of divorce granted to defendant, against this plaintiff, in Division No. 2 of Circuit Court, at Kansas City, on December 8, 1947. The court found that Division No. 2 "was without jurisdiction in rendering the decree of divorce therein," and set aside the decree.
These parties were married in 1921 and have five children. Defendant sued plaintiff for divorce, in the Circuit Court of Jackson County, at Independence, on November 16, 1940. On December 9, 1940, plaintiff filed answer and cross-petition. On November 29, 1940, she was granted temporary alimony of $20 per week, and $50 for attorney fee. In October, 1941, the parties filed a stipulation wherein it was agreed that defendant owed alimony in the amount of $550; that payments thereafter should be $15 per week; and that defendant's employer should deduct from defendant's wages, and pay to plaintiff, $20 per week on this judgment. This alimony was paid until August 4, 1943, but thereafter defendant paid $50 only. Alimony in arrears now amounts to several thousand dollars. In December, 1944, the case was dismissed for want of prosecution but, a few days later, it was reinstated with full knowledge of counsel for both parties, and it is now pending.
Defendant was away from the United States on several occasions, for lengthy periods, and did not communicate with plaintiff until September, 1947. At that time defendant, a Mrs. Gray, whom he later married and with whom he now lives, and one of these parties' sons, Robert, went to Poplar Bluff where plaintiff then lived. Robert stated that, at his father's request, he contacted plaintiff about a settlement of "this divorce that had been pending from Independence out there." However, no settlement was made.
On November 13, 1947, defendant again visited Poplar Bluff and met and talked with plaintiff in a restaurant. Plaintiff testified to the effect that she moved to Poplar Bluff from Kansas City in 1945 because of ill health and lack of income; that on defendant's first visit to Poplar Bluff she refused to see him but that Robert told her defendant would give her $300 if "I would sign a paper so he could get the divorce finished in Independence;" that, on the later visit, their son Richard came for her in a taxi and stated that defendant wanted to see her and get the divorce finished up, that he would give her $100 cash and pay her a sum each week or month; that her sole income at that time was $1 per night which Richard made working at a tavern and plaintiff, Richard, a daughter and a grandson lived on that income; that her health was bad, she had been confined to her bed intermittently, with very little medical attention; that she meant and talked with defendant in a tavern booth, alone; that defendant told her that if she would sign papers so that he could get the divorce he would give her $100 and send her money upon which to live; that he wanted to start a business and settle down; that he did not tell her that he was going to file a new suit; that she would not have signed an entry of appearance to a new suit; her eyes were very bad, she could only read news headlines, had no glasses because she could not afford to buy them; that he did not show her the papers until they went to a notary public office where she signed what was, actually, an answer and entry of appearance to a divorce suit, which was later filed, on November 17, 1947, in Division No. 2; that she never thereafter heard from defendant or about the divorce, or about his remarriage until her lawyer in the Independence suit (and in this case) told her of it; that defendant did not leave her a copy of the instrument.
Court records show that the divorce petition was filed November 17, 1947, and plaintiff's answer, waiver of service, waiver of all claims due for alimony, and entry of appearance, executed four days previously, was filed on December 8, 1947, the same date upon which the decree was granted, both instruments having been filed by defendant, personally.
Defendant was represented by the same attorney who also represented him in the case then pending at Independence.
It also appears that defendant's counsel, prior to preparing the pleadings in the later case, made a search of the records at Independence and found the order of dismissal above mentioned but failed to find the record of reinstatement, or to recall that the case had been reinstated.
The actions and conduct of defendant toward plaintiff, throughout more than ten years that litigation between these parties has been pending, tends to support plaintiff's testimony to the effect that she was led to believe, and did believe, she signed papers to facilitate settlement of the pending Independence case. Such was her testimony. Defendant's testimony conflicted therewith.
Regardless of all other considerations, however, the judgment in this case should be affirmed because Division No. 2 had no jurisdiction to enter a decree of divorce. This is true because there was then pending, in the Circuit Court at Independence, a suit for divorce between the same parties and that court had acquired, then had, and now retains full and complete jurisdiction of the subject matter of the suit, and of the parties thereto. Consequently, at the time the suit was filed, and when the decree was entered, Division No. 2 was wholly without jurisdiction.
In State ex rel. Sullivan v. Reynolds, 209 Mo. 161, loc. cit. 182, 107 S.W. 487, loc. cit. 493, 15 L.R.A., N.S., 963 it was said: "The authorities heretofore cited, both state and federal, establish beyond question that courts of co-ordinate authority have no power of jurisdiction to encroach upon or intermeddle with the power and authority of each other after one has taken jurisdiction of a case. Whenever [the jurisdiction of] a court of competent authority takes jurisdiction of a case, that fact must of necessity, and in the very nature of things, exclude the jurisdiction of all other courts over the same case, as well as all the incidents thereto, excepting only such courts as are given appellate and supervising control over them. The reason for this rule seems to be that, when such a court takes jurisdiction of a particular case, with all the incidents thereto, there remains nothing of it to which the jurisdiction of another court can attach — no case, no parties, no subject-matter is left exposed to the authority of the latter court."
In State ex rel. Aetna Life Ins. Co. v. Knehans, Mo.App., 31 S.W.2d 226, 228, and in State ex rel. Nicholson v. McLaughlin, Mo.App., 170 S.W.2d 705, the St. Louis Court of Appeals applied the above rule. We applied it in State ex rel. Fromme v. Harris, Mo.App., 194 S.W.2d 932, 933.
The rule applies where "the court takes jurisdiction of the res". In re Franz' Estate, 346 Mo. 1149, 145 S.W.2d 400, 403; Drake v. Kansas City Public Service Company, 226 Mo.App. 365, 41 S.W.2d 1066, 1067. A divorce case is a proceeding in rem. Moss v. Fitch, 212 Mo. 484, 499, 111 S.W. 475.
The judgment should be affirmed.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is affirmed. All concur.