Marshall v. Marshall

Missouri Court of Appeals

Marshall v. Marshall

88 Mo. App. 325, 1901 Mo. App. LEXIS 55

DecidedApril 1, 1901

StatusPublished

This text of 88 Mo. App. 325 (Marshall v. Marshall) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Marshall v. Marshall, 88 Mo. App. 325, 1901 Mo. App. LEXIS 55 (Mo. Ct. App. 1901).

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Opinion

ELLISON, J.

Plaintiff obtained a judgment against defendant for divorce in the Livingston Circuit Court. The [326]*326defendant afterwards sued out a writ of error and the ease is thus before us for review. The record brought here by defendant consists of the petition and judgment. The judgment does not recite or show that there was any service on, or appearance by, defendant. Plaintiff afterwards applied for and had sent here a supplemental or additional record consisting of an order of publication by the clerk in vacation. Defendant contends that the judgment is without notice and, therefore, void. ITer contention, in its entirety, is that the record fails to show notice, and that what plaintiff has brought up as supplementary to the record presented by defendant, is not a part of the record.

The defendant’s view is erroneous. An order of publication is a part of the record proper (Milner v. Shipley, 94 Mo. 106) and defendant was at fault in not bringing it up as a part of the record in the first instance.

But, as just stated, the judgment itself does not recite or purport to find that there was notice of any kind given to defendant. It is not necessary to its validity that it should do so. McClanahan v. West, 100 Mo. 309. The judgment is affirmed.

Smith, P. J., concurs; Broaddus, J., not sitting.

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ELLISON, J.

Plaintiff obtained a judgment against defendant for divorce in the Livingston Circuit Court. The [326]*326defendant afterwards sued out a writ of error and the ease is thus before us for review. The record brought here by defendant consists of the petition and judgment. The judgment does not recite or show that there was any service on, or appearance by, defendant. Plaintiff afterwards applied for and had sent here a supplemental or additional record consisting of an order of publication by the clerk in vacation. Defendant contends that the judgment is without notice and, therefore, void. ITer contention, in its entirety, is that the record fails to show notice, and that what plaintiff has brought up as supplementary to the record presented by defendant, is not a part of the record.

The defendant’s view is erroneous. An order of publication is a part of the record proper (Milner v. Shipley, 94 Mo. 106) and defendant was at fault in not bringing it up as a part of the record in the first instance.

But, as just stated, the judgment itself does not recite or purport to find that there was notice of any kind given to defendant. It is not necessary to its validity that it should do so. McClanahan v. West, 100 Mo. 309. The judgment is affirmed.

Smith, P. J., concurs; Broaddus, J., not sitting.

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Bluebook (online)

88 Mo. App. 325, 1901 Mo. App. LEXIS 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-v-marshall-moctapp-1901.

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