Leichty v. Kansas City Bridge Co.

ON MOTION FOR REHEARING. In its motion for rehearing appellant contends that we erred: (1) in holding that the Kansas divorce decree is void because a false and fraudulent affidavit was made to secure an order of publication; (2) in holding the divorce decree was subject to collateral attack.

In support of the first contention appellant cites the following Kansas decisions: Larimer v. Knoyle, 43 Kan. 338; McCormick v. McCormick, 82 Kan. 31, 107 P. 546; Brumbaugh v. Wilson, 82 Kan. 53, 107 P. 792; Martens v. Green, 113 Kan. 142, 213 P. 642; Davis v. Vinson Land Company, 76 Kan. 27, 90 P. 766; Marler v. Stewart Farm Mortgage Company, 111 Kan. 488, 207 P. 823; and Blair v. Blair, 96 Kan. 757.

[7] All those cases are distinguishable from the instant case. All of them except the McCormick case involved domestic judgments, that is, judgments previously rendered by Kansas courts and later attacked in the courts of the same state. In the McCormick case the parties had married in Kansas, later moved to Missouri and still later the wife returned to Kansas. The husband procured a decree of divorce in Missouri on service by publication, but also sent a copy of the petition to the wife's attorneys. She admitted that she had knowledge of the pendency of the divorce suit and the Supreme Court of Kansas stressed that fact in considering an appeal in a suit she brought for alimony.

The instant case involves more than a false affidavit to procure an order of publication. In suits against nonresidents the Kansas statute not only requires publication, but also that a copy of the petition be mailed to the defendant at his or her last known address or an affidavit be filed stating why that cannot be done. That is as much a part of the service as the publication. In the instant case, as pointed out in our original opinion, there was evidence that the plaintiff in the divorce suit made a false affidavit to procure publication and also, despite the fact that he was in correspondence with his wife in Oklahoma, sent a copy of the petition to a friend in Texas with the request that she return it and state she did not know the wife's location, so she could not cause trouble in the suit. If true, that was an active obstruction of one of the "due process" requirements of the statute. Suppose he had obstructed the other requirement and procured a false affidavit that the order had been published when it had not; would any court hold that jurisdiction had been acquired? We think not, nor do we think that any court would so hold under the facts of the instant case. Certainly no such facts were shown in any case cited by appellant.

[8] On its other contention, that the divorce decree was not subject to collateral attack, appellant cites Lieber v. Lieber,239 Mo. 1, 143 S.W. 458, and Howey v. Howey (Mo.), 240 S.W. 450. Both those cases were reviewed in our original opinion and shown to be out of harmony with our later cases which follow Stuart v. Dickinson,290 Mo. 516, 235 S.W. 446. As the Lieber and Howey cases were decided by the court en banc and our original opinion was rendered in division, we transferred the instant case to banc.

In addition to the authorities cited in our original opinion on this point we are sustained by Williams v. North Carolina, 65 Sup. Ct. Rep. 1092, l.c. 1095.

The motion for rehearing is overruled.