DeGraw v. DeGraw

7 Mo. App. 121, 1879 Mo. App. LEXIS 59

• Court: Missouri Court of Appeals
• Decided: April 22, 1879
• Status: Published

Opinions

Bakewell, J.,

delivered the opinion of the court.

This is an action for divorce. The petition was filed on November 16, 1877, and states that the parties were married in 1840. Amongst other things, it is alleged that the defendant is worth $200,000. There is a prayer for alimony. The answer admits the marriage, and denies all other allegations. It also sets up as matter of defence a former divorce. The original petition and decree are set out in full. The petition was filed on April 2, 1866, by the defendant in the present action, in the Circuit Court of Linn County, Missouri. It alleges various sufficient grounds of divorce, and appears to comply with the statute. The decree is dated August 6, 1867. It recites that the parties appeared on that day, Maria DeGraw appearing by attorney, withdrawing her answer and cross-bill, and saying nothing. The decree proceeds: “And this cause coming on for final hearing and judgment, it appearing to the satisfaction of the court that the defendant had been duly served with process in all respects according to law, having been personally served with a copy of the original writ and petition by the sheriff of Linn County, Missouri, and the court being fully advised of the whole matter, it is therefore considered that the plaintiff herein is a much injured person; that the bonds of matrimony between the plaintiff and defendant ought to be forever dissolved.

“ Wherefore it is ordered, adjudged, and decreed by the court, that the bonds of matrimony existing between plaintiff and defendant be, and they are hereby, declared forever dissolved.

“ That the defendant be, and she is hereby, allowed to assume her maide'n name, and that she be allowed to marry again. And it is further ordered and adjudged by the court, that the defendant have and recover of plaintiff all her costs in this suit laid out and expended, and that she have execution therefor.”

The answer says that this decree remains unreversed; that said Maria, at the time of making said decree, and ever since, has been fully advised of the same, and has up to the time of this suit, fully acquiesced in the same ; that she has used the privileges of said decree by assuming her maiden name of Maria E. King, and by that name made herself known and transacted all her business; that defendant herein, in good faith, believing himself duly divorced, on the 22d of June, 1868, married again, and is raising a family of children by the second marriage; that defendant, ever since the former divorce, has continued to reside in Linn County, Missouri, with his last wife and family, and transacted all his business there, with plaintiff’s full knowledge.

The plaintiff replies that, after the petition in divorce set out in the answer was filed by the defendant, and before the decree of divorce was entered, the defendant here, the plaintiff in that case, caused the allegations of adultery to be stricken out of his petition; that all the allegations in his petition were known to him to be untrue; that he followed her to Nevj York during the pendency of that suit and wrongfully caused her arrest, to prevent her from procuring testimony ; that he got possession of the depositions taken for her in the cause and unlawfully suppressed them ; that he intimidated her into signing a stipulation to withdraw all opposition to that suit, and, by threats, intimidation, and cruelty compelled her to admit .the charges in the petition that remained after the graver accusations were stricken out; that no proof was offered in support of these charges, and that the decree was collusively procured; that the petition, after the matters spoken of were stricken out, stated no cause of action, and that the decree of divorce is therefore void ; that she was compelled, after the divorce, to live in New York for some years without any aid from the defendant, and to support herself as best she could, and that she was too poor to seek redress. The replication further alleges that since the divorce the defendant has slandered and cruelly treated her.

The defendant demurred to the reply. The demurrer was sustained ; and the plaintiff declining further to plead, the new matter was taken as confessed. The plaintiff, on the trial, offered evidence tending to prove the allegations of the petition and reply. This testimony was excluded, and the court found for the defendant. The plaintiff brings the cause here on appeal.

The well-settled rule is, that, if the plaintiff obtain judgment, and by his own showing have no cause for action, yet if the court has jurisdiction of the cause, it is only an erroneous judgment, and is not void. If the court has no jurisdiction of the cause, it is a void judgment. But there can be no doubt that the filing of a petition such as ought not to be held good on demurrer, may confer jurisdiction. Freem. on Judg., sect. 118; McNamara on Nullities, 137. And so it is said : “If the Court of Common Pleas holds pleas in debt, trespass, etc., without an original, it is not void, for they are judges of those pleas, and it cannot be said the proceeding was coram non judice.” Co. 77., pt. 10.

The Circuit Court of Linn County had jurisdiction of the subject-matter and of the parties. It had a right, therefore, to decide every question which might arise in the cause ; and whether its decision be correct or not, its judgment, until reversed, is binding on every other court. For fraud in obtaining the jurisdiction, relief can be obtained only in the court possessed of the original record. The court that rendered it may vacate its sentence, when obtained by imposition ; and this may be done even at a subsequent term. But, to quote the language of Chief Justice Willes, adopted by Chief Justice Gibson in Allen v. Maclellan, 12 Pa. St. 329, “ Who ever knew a defendant plead that a judgment against him was fraudulent? He must apply to the court; and if both parties colluded, it was never known that either of them could vacate the judgment. Here the defendant was a party to the sentence; and whether she was imposed upon, or she joined in deceiving the court, this is not the time and place for her to redress herself. She may, if she has occasion, appeal; or apply to the proper judge.”

But it is said in Singer v. Singer, 41 Barb. 139, and the language is cited with approval in the well-considered case of Nichols v. Nichols, 25 N. J. Eq. 65, “When a judgment of divorce has been acquiesced in for several years, and the plaintiff has again been married, some better reason than the gratification of personal feeling, or the desire to obtain a further sum of money from the plaintiff, should be made clearly to appear, before the court would be warranted in granting such an application. The ground on which such an order should be made would be one of public policy; but no such reason should suffice where, after acquiescence of both parties to the judgment for three years, an innocent person has been involved by marriage, and the opening of the judgment would involve her in distress and perhaps disgrace. This reason alone would be sufficient to justify me in denying the motion, if there were no other reasons for doing so, and leaving the parties to the consequence of their own acts. ”

The Circuit Court could not do otherwise than find for the defendant on the pleadings, and dismiss the bill. The principles which justify its judgment in this case are well settled by authority and long practice, and have never been disputed in Missouri. Grignon v. Astor, 2 How. 319; Amory v. Amory, 12 Am. L. Reg. (n. s.) 38; Wright v. Marsh, 2 Greene (Iowa), 111; Landes v. Perkins, 12 Mo. ; Gilman v. Hovey, 26 Mo. 280; Hardin v. Lee, 51 Mo. 241; Fithian v. Monks, 43 Mo. 502.

The judgment of the Circuit Court is affirmed.

All the judges concur.