State ex rel. Davis v. Ellison , 276 Mo. 642 ( 1919 )

WALKER, J. J.-^Certiorari

^Certiorari is here invoked to quash the record of the Kansas City Court of Appeals in a certain original proceeding in prohibition determined in that court, entitled: “The State of Missouri, at the relation of Birdie Taubman, Relatrix, v. Samuel Davis, Judge of the Circuit Court of Lafayette County, and Edwin M. Taubman, Respondents.” Upon a hearing, the preliminary writ issued by the Court of Appeals in the prohibition proceeding was made final. The propriety of that action is here assailed on the ground that the holding of the Kansas City Court of Appeals is contrary to previous rulings of the Supreme Court.

In December, 1915, Edwin M. Taubman and Birdie, his wife, were residing at Lexington, which had been their home for three years prior thereto. Differences arose between them, and on the night of December 15, 1915, she left her home and husband, and went to the residence of a friend in Lexington, where she remained until the 17th day of December, 1915. On the forenoon of that day she went to Kirksville, in Adair County, arriving there in the afternoon. Immediately thereafter, she went to the office of the Clerk of the Circuit Court of Adair County, filed a petition for divorce, and ordered summons therein to issue for service upon her husband in Lafayette County. Service was not obtained upon him until December 20, 1915.

On December 17, 1915, Edwin M. Taubman filed a suit against his wife, for divorce, in the circuit court of Lafayette County, at Lexington, and she was served with summons in same at Kirksville, in Adair County, on the 18th of December, 1915. The summons which had been issued for service upon Birdie. Taubman was made returnable to the February term, 1916, of the Circuit Court of Lafayette County, and was docketed for hearing and determination in that court on February 22, 1916. In the meantime, Edwin M. Taubman filed in the circuit court of Adair County his plea in abatement in answer to the suit there instituted by his wife, alleging the pendency of the suit against her in Lafayette County, and the service of summons upon her.

In the Kansas City Court of Appeals, on the 17th day of February, 1916, Birdie Taubman applied for and was granted a preliminary rule in prohibition against Samuel C. Davis, as Judge of the Circuit Court of Lafayette County, and Edwin M. Taubman, to prevent the trial and determination of the suit instituted by Edwin M. Taubman in said circuit court, alleging as grounds therefor, that said circuit court was attempting to interfere with and frustrate the jurisdiction of the circuit court of Adair County, in the hearing and determination of the suit for divorce instituted by her therein. This writ was made final by. the Court of Appeals, on- the ground, briefly put, that the filing of the suit for divorce in the circuit court of Adair County by Birdie Taubman and the issuance of process therein ousted the jurisdiction of the circuit court of Lafayette County in a like proceeding contemporaneously brought, as to the day of filing, by her husband, Edwin M. Taubman, against her, in said last named court, in which she was served with process two days prior to the service upon him in her suit.

As to what constitutes a domicile or residence within the meaning of the divorce statute is not necessary to a determination of the matter at issue. A discussion, therefore, of the subtleties of rules of interpretation as evidenced by adjudicated cases on this subject, would serve no useful purpose. It may be conceded for the purpose of this case, without thereby announcing a definite rule on the subject, that Birdie Taubman, by her hasty hegira to Adair County, acquired such a residence there as to authorize her to' institute the divorce suit in the circuit court of that county. It follows, as a necessary implication from her right to institute the suit, that the court was thereby empowered to entertain it. Thus empowered, its jurisdiction of the subject-mater was established. This, however, is but one of the essentials necessary to confer upon the court complete and exclusive jurisdiction. The other essential is service upon the person against whom the proceeding is directed in such manner as the statute may require. Present these two essentials, and the jurisdiction of the court is complete. [Kellogg v. Moore, 271 Mo. 189, 196 S. W. 15; State ex rel. Furstenfeld v. Nixon, 133 S. W. 340; State ex rel. v. Holtcamp, 245 Mo. 655, 151 S. W. 153; Robinson v. Levy, 217 Mo. 498, 117 S. W. 577; State ex rel. v. Muench, 217 Mo. 124, 117 S. W. 25, 129 Am. St. Rep. 536.] In the absence of the first essential, the court is without power to proceed in any manner; in the absence of the second, its power is held in abeyance and cannot be exercised until it is present. The rule is uniform in its application. That it applies as well to divorce proceedings as to others is consonant with reason and consistent with an impartial administration of justice. An attempt to create án exception to this rule in divorce proceedings, either by construction or a declaratory statute, and thus confer upon the courts complete and determinative jurisdiction, upon the filing of the petition and the issuance of process without service, would result in a denial of justice in not affording a defendant an opportunity to have his day in court. [Troyer v. Wood, 96 Mo. l. c. 480 and cases.] In recognition of the general application of the rule, our statute on divorce (Sec. 2371, R. S. 1909) affirmatively declares that “such cases shall be tried by the court, and that like process and proceedings shall be had therein as in other civil suits.” The classification of divorce proceedings as in rem, as certain cases loosely declare, affords.no basis in reason for the conclusion that exclusive jurisdiction becomes vested in the court upon the filing therein of the suit. This is not true of actions properly classified as in rem. The presence of the essentials to complete and determinative jurisdiction is as necessary in this class of cases as in others. The jurisdiction acquired by the institution of the action alone, is limited to the res, which must be tangible. [Freeman v. Thompson, 53 Mo. l. c. 194.] A divorce suit is, at most, but an action quasi in rem. [Ellison v. Martin, 53 Mo. 578; McDermott v. Gray, 198 .Mo. l. c. 285; Moss v. Fitch, 212 Mo. 484.] The res is wholly intangible and consists only in the status which 'the plaintiff sustains in relation to the defendant. Upon this theory, jurisdiction of the subject-matter is obtained where the defendant is a' non-resident of the State, and as • a consequence of this fiction in classification, for it is nothing more, substituted service is held sufficient to supply the essential necessary to give the court jurisdiction of the person of the defendant. [Troyer v. Wood, supra.] No question of this character arises here. And it is wholly immaterial, so far as the solution of the question at bar is concerned, whether a divorce suit is in rem, quasi in rem, or in personam. The parties here are all residents. The service, therefore, could not be constructive or substituted, but must be personal. Until obtained, complete jurisdiction was not present in either of the courts. This we have somewhat definitely stated, citing in support thereof a number of cases. Others clearly affirmatory of the doctrine thus announced, are found in our reports from Fithian v. Monks, 43 Mo. 515, to State ex rel. v. Cave, 272 Mo. 653, and are cited in relator’s brief. In one of these, State ex rel. v. Holtcamp, 245 Mo. 655, we said: “To acquire jurisdiction a court must (1)

possess power to determine the general class of cases to which the one belongs which it is attempting to adjudicate; (2) when its judgment, as in this case, will affect the title to particular property, it is generally necessary that such property be situated within the territorial jurisdiction of the Court; and (3) the court must by its-process or by voluntary appearance acquire jurisdiction over the persons whose rights will be affected by the decree.” In State ex rel. v. Barnett, 245 Mo. l. c. 115, we held that a failure to show service of process discloses an absence of jurisdiction. McMahan v. Hubbard, 217 Mo. l. c. 644, announces a like doctrine. In Charles v. White, 214 Mo. 187, we said: “There must not only be jurisdiction as to the parties affected by the decree by having them before the court by process or appearance, but there must be jurisdiction of the matter acted upon by having it before the court in the pleadings.” In Troyer v. Wood, 96 Mo. l. c. 480, we said that “it is a principle of universal justice that no one shall be condemned in his person or property without notice and an opportunity to be heard in his defense. Notice is therefore essential to the jurisdiction of all courts; and the rule which requires it to be given to the party whose interests and rights are sought to be affected by judicial proceedings is as old as the law itself.” Citing Troyer v. Wood, supra, as a controlling precedent, the Kansas City Court of Appeals said, in Burge v. Burge, 94 Mo. App. l. c. 21: “'Notice is essential to jurisdiction; to give judgment without it is to disregard the maxim audi alteram partem. Such a judgment would possess none of the qualities of a j ndicial determination and cannot be upheld. And proceedings in rem or quasi in rem are not exempt from the operation of the rule which makes notice in some form essential to jurisdiction.”

As to what is complete and exclusive jurisdiction, having thus been clearly and unequivocally defined, it does not seem that uncertainty could arise, in any given case, as to when and to what extent it exists. The suits about which this controversy centers were filed on the same day. This, however, is immaterial, as the filing of the suit and the issue of process alone will not, as we have shown, be determinative of the question at issue. Therefore we need not concern ourselves with a review of the eases defining what constitutes the commencement of a suit. Nor is it necessary to discuss whether that spirit of comity that should exist between courts of co-ordinate jurisdiction has been manifested in these proceedings. Both suits having been filed on the same day, neither court could lmqw thac a like proceeding had been commenced in the other. Recognition of priority was, therefore, precluded, and comity, as a consequence, rendered impossible. Its manifestation thereafter was certainly not called for from the court ’%hich had regularly acquired all the essentials to complete and determinative jurisdiction. Let it be conceded that the filing of the suit was a few hours earlier in ine circuit court of Adair County than that in the circuit court of Lafayette County, actions for divorce Icing within the judicial purview of these courts, each, upon the filing of the suit therein, acquired jurisdiction of the subject matter. There remained to be supplied the essential of the service of process necessary to draw the person within the power of the court. This was had upon Birdie Taubman in the. suit instituted by her husband on December 18, 1915. Service was not had upon Edwin M. .Taubman in the suit instituted by his wife until December 20, 1915. The circuit court of Lafayette County was, as a consequence of this prior service, clothed with complete and exclusive jurisdiction. Thus panoplied, no court was authorized by extraordinary writ to interfere with the exercise of its powers. There is never room for prohibition in the presence of complete jurisdiction. The circuit court of Lafayette County should, therefore, have been permitted to hear and determine the suit instituted therein by Edwin M. Taubman, and the action of the Court of Appeals in attempting to deprive it of this power was without warrant. Its record should, therefore, be quashed. It is so ordered.

All concur, except Bond, C. J., not sitting.