State Ex Rel. Coonley v. Hall

*206 ELDER, J. Relator seeks by writ of prohibition to prohibit respondent from proceeding further in the divorce action of George T. Coonley v. Prances A Coonley, in which a motion to vacate a judgment and decree of divorce and to re-instate the cause on the docket of the Circuit Court of Jackson County .was sustained on February 21, 1922. Upon application this court issued a preliminary rule requiring respondent to show cause why our writ should not issue. In due time respondent filed his return and relator then moved for judgment on the pleadings. By leave, counsel for Prances A. Coonley have filed suggestions in opposition to the writ. *207 The facts disclosed by,the petition for the writ and admitted by the return are as follows On July 23, 1920, relator, as plaintiff, filed in the Circuit Court of Jackson County, in vacation his petition for divorce from Frances A. Coonley, defendant, which petition, among other things, alleged that the defendant was a non-resident of Missouri and could not be served with process. Thereupon the clerk of said court made the following order of publication, caption omitted, to-wit: “Now on this 23rd day of July A. ,D. 1920, comes the plaintiff by attorney and presents to the clerk of. the Circuit Court, Jackson County, Missouri, at Independence, in vacation, verified petition filed herein, which among other things says that defendant is a non-resident of the State of Missouri, and the court wherein said suit is brought being fully advised in the premises, has, at Independence, Jackson County, Missouri. “Thereupon the following order is made by said clerk, to-wit: “To Frances A. Coonley, defendant: “You are hereby notified that the plaintiff has commenced suit against you by petition heretofore filed in said court the object and general nature of which is to obtain a decree of divorce from the bonds of matrimony heretofore contracted between plaintiff and defendant on the grounds of: That defendant has offered to plaintiff such indignities as to render his condition as her husband intolerable. And unless you be and appear at the next regular term of said court, to be begun and held at the county court house in the city of Independence, Jackson County, Missouri, on the second Monday in September next, the same being the thirteenth day of s'aid month, and on or before the third day thereof, answer unto said petition, it will be taken as by you confessed and a decree granted as prayed. It is further ordered that publication hereof be made according to law in the Jackson Examiner, a newspaper published regularly in said county. ’ ’ *208 Thereafter there was published in the Jackson Examiner, a weekly newspaper regularly published in Jackson County, for four successive insertions, an order of publication as follows, caption omitted: “Now on this 23rd day of July A. D. 1920, comes plaintiff in the above entitled cause for divorce and presents his verified petition wherein he has alleged that the defendant is a non-resident of the State of Missouri, and the court wherein said suit is brought being fully advised in the premises, has, at Independence, Jackson County, Missouri, made the following order, to-wit: “To Frances A. Coonley, Defendant: “You are hereby notified,” etc. (Here follows a notice practically identical with the notice directed to Prances A. Coonley above set forth). The notice and order last above mentioned is signed as follows: “Attest: W. H. Harper, Clerk. By George Don-nellan, Deputy Clerk.” Thereafter, on October 8, 1920, being the 18th day of the September term, 1920, of the said circuit court, the cause was submitted; plaintiff appearing in person and by attorney, and defendant making default. An affidavit of the publisher of the Jackson Examiner, showing due publication of the order of publication, was submitted to the court, and a judgment granting relator a divorce was entered. On March 26, 1921, being the 12th day of the March term, 1921, of the said court, Prances A. Coonley, defendant in the divorce action, filed a motion to vacate the judgment of divorce and to re-instate the cause, the same being as follows: “Comes now the defendant and moves the court to vacate the purported judgment and decree of divorce granted plaintiff on October 8, 1920, as same appears in Record 44 at Page 616, and to re-instate this cause upon *209 the docket for the reason that at the time of making said entry of record no service of process had been had and no entry of appearance made by defendant; that the attempted and pretended service by publication was not made in accordance with the statute of the State of Missouri as shown by the record entry in this cause and the proof of publication and is wholly void and of no effect.” Relator, in his petition herein, alleges that during the entire year of 1921 he resided in Chicago, Illinois, and that no service of said motion, or of notice thereof, was had upon him or any one for him, and that on the hearing thereof he did not appear in person or by counsel. Respondent in his return states that upon the hearing of said motion no one appeared for the relator and that, no evidence was introduced as to whether or not any notice of said motion had been given relator. On March 28, 1921, during the March term, 1921, the motion to vacate and re-instate was overruled. Thereafter, on June 2, 1921 during the March term, 1921, an appeal was allowed defendant Frances A. Coonley to the Kansas City Court of Appeals. On November 16, 1921, during the September term, 1921, defendant filed her bill of exceptions, which was signed and allowed by the court. On February 15, 1922, during the December term, 1921, there was received by and filed in the circuit court, the mandate of the Kansas City Court of Appeals, reversing the judgment overruling the motion to vacate and remanding the cause with directions to set aside the judgment of divorce and re-instate the cause on the docket. A copy of the opinion of the Kansas City Court of Appeals, reported in 237 S. W. 198, is attached to relator’s petition for our writ. The petition herein recites that no process was served upon relator, or upon any one authorized to accept process for him, of the proceedings in the Kansas City Court of Appeals, and that *210 he did not appear therein in person or by counsel. On May 3, 1922, there was filed in this court an affidavit by Alpha N. Brown, of counsel for Prances A. Coonley, stating that on or about November 19, 1921, he mailed a copy of the abstract of record and brief before the Kansas City Court of Appeals to George T. Coonley at the Lumbermen’s Exchange Building, Chicago, Illinois, and that he thereafter received a return registry receipt showing that the copy of said abstract and brief was received at Chicago by George T. Coonley on November 25, 1921. On February 21, 1922, during the December term, 1921, of the circuit court, the court made an order vacating the judgment of divorce theretofore entered, and re-instating the cause upon its docket. Respondent, in his return, states that unless restrained he will proceed to hear the cause in due course. Relator concludes his petition by alleging that with the expiration of the September term, 1920, of the circuit court, the judgment of divorce became final and conclusive; that the said court had no jurisdiction, on a motion filed at the March term, 1921, to set aside or vacate said judgment; that the Kansas City Court of Appeals was without power or jurisdiction to set aside said judgment; that respondent did not, by the mandate of the Kansas City Court of Appeals, re-acquire power to set aside said judgment; and that acting in reliance upon the said judgment of divorce relator re-married before he acquired any knowledge of the proceedings subsequent to the September term, 1920. I. From the view we take of this proceeding there is a primary question before us which is decisive of the case and that is — did the Kansas City Court of Appeals have jurisdiction to decide the questions involved in the appeal taken from the order overruling the motion to vacate the judgment of divorce and reinstate the cause? If so, then upon a proceeding by prohibition we are bound *211 by tbe opinion of- the Court of Appeals, whether correct or not, and the writ will not lie. If not, then we can exercise the superintending control lodged in this court by the Constitution and intervene. That the Court of Appeals, when acting within its jurisdiction and not in conflict with the decisions of this court, is a court of final adjudication, is too evident tp require any extended citation of authority. As said in State ex rel. Miles v. Ellison, 269 Mo. 151, l. c.. 156: “We all yield assent to the one proposition that the courts of appeals are courts of „last resort, and when acting within their jurisdiction and not in violation of our decisions, can decide cases as their judgment dictates, and in so doing can, without interference on our part, commit error and decide incorrectly, just as we can.” It is urged by relator, however, that the Court of Appeals had nd jurisdiction of the appeal from the order overruling the after-term motion to vacate the judgment of divorce. In support of this contention it is argued that Sections 1811,1812, Revised Statutes 1919, deprived the Court of Appeals of all power to reverse or annul the final judgment of October 8, 1920. Section 1811, so far as pertinent hereto, provides substantially that no final jugdment rendered in a divorce proceeding shall be reversed, annulled or modified by appeal “unless such appeal shall have been granted during the term of court at which the'judgment or order appealed from was rendered.” Section 1812 provides that no petition for review of any judgment of divorce “shall be allowed, any law or statute to the contrary notwithstanding.” Relator seems to lose sight of the fact, however, that the motion to vacate the judgment of divorce called into question the jurisdiction of the circuit court ab initio, cm the ground that no service of process had been had on defendant and that the attempted service by publication was void. The sections cited contemplate that an appeal or petition for review will only be denied when the circuit *212 court had jurisdiction of the subject-matter of the action and the parties; and where the court nisi was devoid of jurisdiction, the statutes have no application. As said in Nave v. Nave, 28 Mo. App. l. c. 510, wherein the two sections before us were being considered, “If the court had no jurisdiction of the cause its decree was a nullity and should be set aside. Neither the lapse of time, nor evil results following, could prevent this.” And a void order or judgment, made when the court is without power or jurisdiction to award it, has often been held to he reviewable on appeal. [Smith v. Jacobs, 77 Mo. App. 254; Hoover v. Hoover, 39 Ore. 456; Railway Co. v. Lockridge, 93 Ind. 191; Fleeman v. Ry. Co., 82 Kan. 574; Livermore v. Campbell, 52 Cal. 75; People v. Evans, 262 Ill. 235; Monger v. New Era Assn., 145 Mich. 683; Armstrong v. Mayer, 60 Neb. 23.] As said in 3 Corpus .Juris, sec. 287: “Although a judgment, order, cr decree is void, and1 not merely erroneous, it is so far to be considered in existence by the appellate court that it may be reviewed and reversed on writ of error or appeal.” Moreover, it has been specifically ruled that an appeal will lie from an order overruling a motion in the lower court to set aside a void judgment. [Baldridge v. Baldridge, 117 S. W. Ky.) 253; Herman’s Exrs. v. Martin, 107 Ky. 642; Ecker v. First Natl. Bank, 62 Md. 519; Piper v. Johnston, 12 Minn. 60; Hager v. Brewing Co., 90 S. W. (Ky.) 608.] And finally, the validity of the appeal and the matter of jurisdiction were questions to be determined exclusively by the Court of Appeals, it being a court of last resort in the character of case before it. [State ex rel. Scott v. Smith, 104 Mo. 419; 3 C. J. 371, sec. 128; Lester v. Howard, 24 Md. 233.] And it was the duty of that court to determine the question of jurisdiction on its own motion, even though not raised by the parties. [State ex rel. Ragsdale v. Walker, 132 Mo. 210; May v. Mortgage Trust Co., 138 Mo. 447; Cable v. Duke, 208 *213 Mo. 557; Beechwood v. Railroad, 173 Mo. App. 371; Ferguson v. Comfort, 159 Mo. App. 30.] That the Court of Appeals decided it had jurisdiction is fully apparent. We accordingly rule that it had jurisdiction. Having assumed jurisdiction of the appeal, the Court of Appeals proceeded to decide that the after-term motion to vacate the judgment and reinstate the case was filed in time, using this language: “Said motion to vacate the judgment and reinstate the case on the docket was filed in time, even if the decree of divorce was rendered at the September term, 1920, and the motion was not filed until the March term, 1921, with the November term, 1920, intervening. [Sec. 1552, R. S. 1919; Hirsh v. Weisberger, 44 Mo. App. 506; State ex rel. Ozark County v. Tate, 109 Mo. 265, 18 S. W. 1088, 32 Am. St. 664.] And if the irregulárity is such as to invalidate the service relied upon, then it is such irregularity for which the motion will lie. [Woodruff v. Bunker-Culler Lumber Co., 242 Mo. 381, 146 S. W. 1162.]” The court then further proceeded to decide that the order of publication as made and published was not sufficient to constitute constructive notice to the defendant Frances A. Coonley and give the circuit court jurisdiction to render the decree of divorce, and reversed and remanded the case. Having so decided, it is not the province of this court upon an application for a writ of prohibition to rule otherwise. [State ex rel. Dawson v. St. Louis Court of Appeals, 99 Mo. 216; State ex rel. Scott v. Smith, 104 Mo. 419.] As said by Black, J., in State ex rel. Dawson v. St. Louis Court of Appeals, supra, l. c. 221: “The writ cannot be awarded for the simple purpose of correcting errors, if any there were.” And this it is patent is what the relator would have us do. For the reasons appearing herein, the preliminary rule heretofore granted should be discharged and the permanent'writ refused. It is so ordered. All concur except Woodson, C. J., who dissents.