Watts v. Watts , 304 Mo. 361 ( 1924 )

As to jurisdiction: The appellate jurisdiction exercised by this court or by a majority of this division, is based upon a transfer by the Kansas City Court of Appeals for the alleged reason that title to real estate is involved.

After the trial court entered a decree of divorce for the plaintiff an attempted divestiture of defendant's title in certain real estate was added and an investiture of the same in the plaintiff.

I. The solution of the question as to the legal propriety of this portion of the decree will be sufficient to enable it to be determined whether this court has jurisdiction. In the absence of an express statute, and our divorce law is, as to its letter, statutory (Chapman v. Chapman, 269 Mo. 663), we conclude that the trial court's action must have been based upon a clause in Section 1806, Revised Statutes 1919, relating to the method prescribed for the enforcement of the collection of alimony and maintenance, to this effect that "an execution may be awarded for the collection of same or the judgment or order enforced by the sequestration of property," etc. While divestiture is not sequestration, the latter drastic method of the old chancery practice is the nearest approach to any semblance of authority for the trial court's action. It is pertinent, therefore, to ascertain whether there is any vitality left in this method of enforcing the court's judgments or orders which even in its flower could only be resorted to when authorized by the very letter of the law. [Beck v. Brady, 6 La. Ann. 444.] It flourished when imprisonment for debt was authorized, and faded when that method of breaking the spirit of the debtor ceased to exist, and statutes were enacted authorizing default judgments and the issuance of executions as methods milder in form and more effective in fact for the pecuniary enforcement of a court's decrees. Thus panoplied with these modern methods, neither reason nor necessity sanctions a resort to a procedure which bears any semblance to sequestration.

While we have not ruled on the particular point here in issue we held in Ecton v. Tomlinson, 278 Mo. 282, as definitive of the limits of a decree for divorce, that a trial court has no jurisdiction to conpel a wife to relinquish her inchoate dower in her husband's lands, and that a decree which attempts to adjudicate property rights, present and inchoate, by awarding to the wife certain personal property and money in lieu of dower, is void, as involving a proceeding wholly beyond the court's jurisdiction.

In Aylor v. Aylor, 186 S.W. (Mo.) 1068, we held in construing Section 1806, supra, that there is no authority in this State for decreeing to a wife specific personal property of the husband as a part or all of her alimony. A like rule was announced in Fisher v. Fisher, 207 S.W. (Mo.) 261.

Even if it be conceded that the continued presence, by name of sequestration, in the statute is not utterly meaningless under modern methods of procedure, it cannot, as is here attempted, be made a part of a decree but can only be resorted to, as the section prescribes, as an alternative to an execution, "to enforce the performance of the judgment or order of the court." Whether, therefore, the trial court was but dimly conscious of the limits of a decree of divorce under our statute, or was so saturated with the black letter learning of the ecclesiastical courts where proceedings of the character under review had their origin, and hence concluded that sequestration was still an active instrumentality, is immaterial. Our jurisdiction on the ground that real estate is involved in the determination of this case does not exist in that the action of the trial court in regard thereto is void. The utter vacuity of this addendum to the decree, so far as it could in any wise affect the title to the defendant's real estate, is evident in its very words and a line to that effect by the Court of Appeals in the disposition of the case on the merits would have sufficed to settle that question without the delay incident to a transfer to this court.

We have repeatedly held that in order that real estate may be involved so as to give appellate jurisdiction to the Supreme Court the judgment sought or rendered must affect or operate on the title itself. [Mathews v. Hughes, 232 S.W. (Mo.) 99; Murphy v. Barron, 286 Mo. 390; Sikes v. Turner, 242 S.W. (Mo.) 940; Schroer v. Brooks, 224 S.W. (Mo.) 53; Heath v. Beck, 225 S.W. (Mo.) 993.]

I raise no question as to the correctness of the ruling of the majority on the merits. This is a matter I have not investigated; my purpose being simply to record my protest against this assumption of jurisdiction.