Summary
In Terte, the Missouri Supreme Court set forth the factors to consider in proceeding with a declaratory judgment action.
Summary of this case from Cronin v. State Farm Fire Casualty Co.Opinion
NOTE: Opinion filed at May Term, 1939, July 7, 1939; motion for rehearing filed; motion overruled at September Term, September 12, 1939.
1. DIVORCE: Foreign Divorce. A suit for divorce is a proceeding in rem.
The policy of Missouri is to recognize the validity within its borders of foreign divorces; this policy violates no rights under either the Federal or State Constitution.
2. DECLARATORY JUDGMENTS. The Declaratory Judgment Act is remedial; its purpose is to settle and afford relief from uncertainty and insecurity and it is to be liberally construed. [Sec. 12, Act 1935, p. 220.]
The function of the Act is to authorize circuit courts to declare rights, status, and other legal relations.
3. DECLARATORY JUDGMENTS: Divorce in Another State. Where a proceeding for a declaratory judgment under the Missouri Act was instituted by the alleged widow of a deceased and involved the claim of plaintiff under the Missouri Compensation Act, and incidentally a decree of divorce in Kansas, the Act could not be used as a substitute for a new trial, or an appeal, or a review proceeding, or a mode of testing the validity of the judgment for divorce in another state, admittedly valid on its face.
PROVISIONAL RULE MADE ABSOLUTE.
Lathrop, Crane, Reynolds, Sawyer Mersereau, Richard S. Righter, R. Arch Smith and William A. Graham for relator.
(1) The respondent is acting in excess of his powers because the Missouri Workmen's Compensation Commission has exclusive jurisdiction over the claim for compensation, including the question whether Cora A. Liechty was the wife of Lewis Edwin Liechty at the time of his death. State ex rel. Mo. Pac. Ry. Co. v. Williams, 120 S.W. 740; R.S. 1929, secs. 3301, 3310, 3319, 3342; Kemper v. Gluck, 39 S.W.2d 330; Pfitzinger to the Use of Stotscky v. Shell Pine Line Corp., 46 S.W.2d 955, 226 Mo. App. 86; Sylcox v. Natl. Lead Co., 38 S.W.2d 497, 225 Mo. App. 543; 71 C.J. 1480, sec. 1488; Kemmerling v. Koch Erecting Co., 89 S.W.2d 674; Cotter v. Valentine Coal Co., 14 S.W.2d 660; Delfelder v. Norton Bros. Const. Co., 98 S.W.2d 127; State ex rel. Brewen-Clark Syrup Co. v. Workmen's Comp. Comm., 8 S.W.2d 897; Caldwell v. Kreis Sons, 72 S.W.2d 201; Ribas v. Stone Webster Eng. Corp., 95 S.W.2d 1221; Denning v. Star Pub. Co., 180 N.E. 685; Reed v. St. Louis S.W. Ry. Co., 95 S.W.2d 887; Warren v. Amer. Car Foundry Co., 38 S.W.2d 718, 327 Mo. 755; Northern States Contracting Co. v. Swope, 111 S.W.2d 610, 271 Ky. 140. (a) The declaratory judgment law does not enlarge the jurisdiction of the circuit court nor authorize it to infringe upon the jurisdiction of the Workmen's Compensation Commission. Mo. Declaratory Judgment Act, Laws 1935, p. 218, secs. 1, 6; Borchard on Declaratory Judgments, 156; Updike Inv. Co. v. Employer's Liability Assur. Corp., 258 N.W. 470; U.S. Fid. Guar. Co. v. Savoy Grill, 1 N.E.2d 946; Moore v. Louisville Hydro-Electric Co., 10 S.W.2d 466; Chicago, R.I. P. Ry. Co. v. State Highway Comm., 17 S.W.2d 535; Stewart v. Herten, 249 N.W. 552. (b) Having invoked the jurisdiction of the commission, the plaintiff cannot be heard to deny that the commission has jurisdiction to pass upon the issues relevant to her claim. Oren v. Swift Co., 51 S.W.2d 59. (2) Cora A. Liechty's action in the Jackson County Circuit Court is a collateral attack upon the final decree of a court of competent jurisdiction, regular on its face, which circuit court has no jurisdiction to entertain. Lieber v. Lieber, 143 S.W. 458, 239 Mo. 1; Ray v. Ray, 50 S.W.2d 142, 330 Mo. 530; McDermott v. Gray, 198 Mo. 266, 95 S.W. 435; Barrett v. Barrett, 79 S.W.2d 506; Howey v. Howey, 240 S.W. 450; Keena v. Keena, 10 S.W.2d 344; Howard v. Strode, 146 S.W. 792; Reger v. Reger, 293 S.W. 414; Adamson v. Snider, 131 Kan. 284, 291 P. 744; Kaufmann v. Annuity Realty Co., 301 Mo. 638; In re Sisk, 305 Mo. 328; State ex rel. Johnson v. Merchants Miners Bank, 279 Mo. 228. (a) The court has no jurisdiction under the declaratory judgment act to readjudicate matters already finally determined. Feree v. Feree, 115 S.W.2d 1055, 273 Ky. 238; Back's Guardian v. Bardo, 27 S.W.2d 960, 234 Ky. 211. (3) Since an action is pending before the Compensation Commission, a tribunal of competent jurisdiction, to permit the circuit court to exercise jurisdiction would result in the undue harassment of relator. Bartlett v. Littrell, 26 S.W.2d 768; State ex rel. Ingenbohs v. Landis, 158 S.W. 883; State ex rel. Sullivan v. Reynolds, 107 S.W. 487; Maclane v. Wayne County Judge, 52 Mich. 259, 18 N.W. 396.
Cowgill Popham, Guy Green, Jr., Clinton R. Krimminger and W. Porter Bondies for respondent.
(1) Declaratory judgment suit proper proceeding to determine plaintiff's status. Laws 1935, p. 218, sec. 1097; Borchard on Declaratory Judgments, p. 625, chap. 3, p. 391; 43 Har. Law Rev., p. 479; Dodge v. Campbell, 220 N.Y.S. 262; Baumann v. Baumann, 226 N.Y.S. 576; Gold v. Gold, 275 N.Y.S. 506; Pignatelli v. Pignatelli, 8 N.Y. Supp.2d 10; Baumann v. Baumann, 165 N.E. 819; Lowe v. Lowe, 192 N.E. 291; Miller v. Currie, 242 N.W. 570; Henry v. Henry, 144 A. 18. (2) Declaratory Judgment Act plaintiff's only remedy because plaintiff may not pursue any other action since the party obtaining the divorce is dead. Jonsson v. Erickson, 108 Kan. 580, 196 P. 435; Adamson v. Snider, 131 Kan. 284, 291 P. 744; Dodge v. Campbell, 220 N.Y.S. 262; Baumann v. Baumann, 226 N.Y.S. 576; Gold v. Gold, 275 N.Y.S. 506; Miller v. Currie, 242 N.W. 570; Henry v. Henry, 144 A. 18; Lieber v. Lieber, 143 S.W. 458. (3) Compensation Commission has no jurisdiction to go behind divorce decree apparently regular on its face. (4) Action does not invade jurisdiction of Compensation Commission because it determines nothing Commission has power to pass on. Borchard on Declaratory Judgments; Baumann v. Baumann, 226 N.Y.S. 576.
This proceeding in prohibition is pending on relator's motion for judgment on the pleadings.
In March, 1938, Cora A. Liechty instituted an action for a declaratory judgment in the Circuit Court of Jackson County, Missouri, against the Kansas City Bridge Company, a Missouri corporation, relator here, the general objects and purposes of which action were a declaration that a certain divorce decree granted Lewis E. Liechty is of no force and effect; that she is the lawful widow of Lewis E. Liechty; and that certain proceedings instituted by her before the Workmen's Compensation Commission of Missouri be stayed pending the determination of her status under said petition. Her petition alleged her marriage to Lewis E. Liechty on October 23, 1921; Lewis E. Liechty's obtaining a divorce on the 20th day of September, 1935, in the District Court of Wyandotte County, Kansas; the death of Lewis E. Liechty on July 24, 1937, as the result of an accident arising out of and while performing services within the scope of his employment for said Kansas City Bridge Company; and her filing of due and timely claim for compensation under the Workmen's Compensation Law of Missouri. It charged that she had never lived in Kansas with said Lewis; that she was never served with summons; that said Lewis made a false affidavit in aid of service by publication in swearing he did not know and had been unable to ascertain whether she was living or dead or her whereabouts; that he testified he did not know petitioner's whereabouts and was unable to forward registered notification of said suit, all in contravention of the laws of Kansas; that said decree was procured by fraud upon the court and petitioner; that Lewis E. Liechty left no estate and no minor children surviving; that the Kansas City Bridge Company was a self-insurer, and that she and said company were the only parties interested in or to be affected by said compensation proceedings or the relief prayed. It further alleged that the record and decree in the Kansas divorce proceeding "are valid on their face." Relator's demurrer nisi was overruled and this proceeding followed.
Section 1 of the Missouri Declaratory Judgment act (Laws 1935, pp. 218-220, Mo. Stat. Ann., secs. 1097a-1097o, p. 1388) provides: "The Circuit Courts and Courts of Common Pleas of this State, within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree."
The Michigan Declaratory Judgment act (Mich. C.L. 1929, Sec. 13903) reads, in part: "No action or proceeding in any court of record shall be open to objection on the ground that a merely declaratory judgment, decree or order is sought thereby, and the court may, in cases of actual controversy, make binding declarations of rights . . ." In Miller v. Siden, 259 Mich. 19, 242 N.W. 823, the Michigan court ruled "The proceeding for declaratory judgment is not a substitute nor alternative for the common law actions." [See, also, Eiffel R. I. Co. v. Ohio Citizens Trs. Co., 55 Ohio App. 1, 8 N.E.2d 470, reviewing cases; Brindley v. Meara, 209 Ind. 144, 198 N.E. 301, 101 A.L.R. 682, 688; Annotation, 87 A.L.R. 1219, h.]
The Kentucky act (Carroll's Ky. Code, 1938, Sec. 639a-1) provides: "In any action in a court of record of this Commonwealth having general jurisdiction wherein it is made to appear that an actual controversy exists, the plaintiff may ask for a declaration of rights, . . ." The case of Ferree v. Ferree, 273 Ky. 238, 115 S.W.2d 1055, is somewhat analogous to the instant action. Emma Ferree had obtained a divorce from Cyrus Ferree while he was confined in the penitentiary and was awarded alimony and a lien on his land to secure payment. Thereafter, Cyrus Ferree, claiming the whole divorce proceeding was void, instituted his action for a declaration of rights. The court said: "In Black's Guardian v. Bardo, 234 Ky. 211, 27 S.W.2d 960, we pointed out that the purpose of the Declaratory Judgment Act was to have a declaration of rights not theretofore determined, and not to determine whether rights, theretofore adjudicated had been properly adjudicated, and held that an action will not lie under the Declaratory Judgment Act to determine the propriety of a judgment in a prior action between the same parties. Were the rule otherwise, a proceeding would lie under the Declaratory Judgment Act to determine whether the judgment passing upon the validity of a prior judgment was proper, and there would be no end to that kind of litigation. It follows that the petition was properly dismissed."
Respondent cites Dodge v. Campbell, 128 Misc. 778, 220 N.Y.S. 262; Baumann v. Baumann, 222 A.D. 460, 226 N.Y.S. 576, approved 250 N.Y. 382, 165 N.E. 819; Gold v. Gold, 156 Misc. 93, 275 N.Y.S. 506; Pignatelli v. Pignatelli, 169 Misc. 534, 8 N.Y. Supp.2d 10; Lowe v. Lowe, 265 N.Y. 197, 192 N.E. 291; Henry v. Henry, 104 N.J. Eq. 21, 144 A. 18; Miller v. Currie, 208 Wis. 199, 242 N.W. 570. The Miller case involved the legality of an alleged common-law marriage and an alleged bigamous marriage. No prior adjudication of the status of the parties was involved. The other cases are to the effect that declaratory proceedings are proper to determine the marital status of litigants in the circumstances mentioned in the Greenberg case, infra.
Decrees of divorce granted upon constructive service in a sister state have a materially different legal status in New York and Missouri. [Ball v. Cross, 231 N.Y. 329, 331, 334, 132 N.E. 106, 107[1], 108, 39 A.L.R. 600, 601, 603.]
Greenberg v. Greenberg, 218 A.D. 104, 112, 218 N.Y.S. 87, 94[2], quoting a reason, states the New York rule: "This state has settled as its adjudged policy to refuse to recognize as binding a decree of divorce obtained in a court of a sister state, not the matrimonial domicile, upon grounds insufficient for that purpose in this state, when the divorced defendant resided in this state, and was not personally served with process and did not appear in the action." The ruling does not contravene the full faith and credit clause (Art. 4, Sec. 1) of the Federal Constitution. [Haddock v. Haddock, 201 U.S. 562, 26 Sup. Ct. 525, 50 L.Ed. 867, 5 Ann. Cas. 1, affirming 178 N.Y. 557, 70 N.E. 1099, 76 A.D. 620, 79 N.Y.S. 1133. Consult Davis v. Davis, 305 U.S. 32, 59 Sup. Ct. 3, 83 L.Ed. 52; Atherton v. Atherton, 181 U.S. 155, 21 Sup. Ct. 544, 45 L.Ed. 794; Annotations: 5 Ann. Cas. 26; 39 A.L.R. 603; 105 A.L.R. 817.]
Dodge v. Campbell (l.c. s refer to 220 N.Y. Supp.), was an action, pending on the sufficiency of the petition, by Anna S. Dodge, the first wife of Byron G. Dodge, and the children of said Anna and Byron against Mary A. Dodge (formerly known as Lillian Campbell), the purported second wife of said Byron, to determine the relationship of the parties with said Byron, who had departed this life. The allegations embraced issues involving the validity of a divorce granted in Pennsylvania to said Byron from said Anna (l.c. 264); and also a New York decree dissolving the marriage of Lillian Campbell to John, F. Campbell (l.c. 267). The court ruled the allegations disclosed that the Pennsylvania court acquired jurisdiction over the parties in the cause of Dodge v. Dodge; that said decree of divorce could not be attacked collaterally [l.c. 266 [3] et seq.], and dismissed the complaint as to said Anna S. Dodge, directing plaintiffs to eliminate the allegations relating to the Pennsylvania divorce (l.c. 269). However, speaking to an allegation that neither Lillian Campbell nor John F. Campbell were residents or domiciled in New York prior to the dissolution of their marriage, the court considered actual residence or domicile of one of the parties within the State essential to render a domestic order of dissolution "safe from collateral attack" (l.c. 267, 268[9]); that the marriage of Lillian Campbell and Byron G. Dodge was "absolutely void," rather than "voidable" (l.c. 268[10]); and that the New York court lacked jurisdiction and its order dissolving the Campbell marriage was a nullity (l.c. 269[11]). If the Campbell-Dodge marriage was absolutely void, rather than voidable, it must have been so considered because the Campbell divorce proceeding was void rather than voidable, the Dodge divorce proceeding being held valid. The Dodge case further states (l.c. 267[7]): "It has been said that our matrimonial actions for divorce or annulment are in personam;" and comments on the paradox that where the situation is the reverse of that stated in the Greenberg case the New York courts entertain jurisdiction. We do not refer to other possible distinctions.
On the other hand Missouri courts hold: "A suit for divorce, so far as it seeks to dissolve the marriage relation merely, is a proceeding in rem and the thing proceeded against is the status of marriage." "The decree so pronounced is a judgment in rem . . ." [Coffee v. Coffee (Mo. App.), 71 S.W. 141, 142[2, 6]; Lieber v. Lieber (Banc), 239 Mo. 1, 55, 143 S.W. 458, 475; Gould v. Crow (Banc), 57 Mo. 200, 203.] Howey v. Howey (Banc), 240 S.W. 450, 453[4] (certiorari denied, 260 U.S. 730, 67 L.Ed. 485, 43 Sup. Ct. 92), quotes and approves the earlier case of Howard v. Strode, 242 Mo. 210, 225, 146 S.W. 793, 797[8] (discussing the Haddock case), holding that the policy of Missouri is to recognize "the validity within its borders of such foreign divorces [speaking of decrees of divorce rendered on constructive service]. . . . This policy violates no rights under either the federal or state constitution." Other Missouri cases are to like effect.
The judgment involved in the respondent's New York cases appear to have the status of void judgments — dead limbs upon the judicial tree — under the New York law. Likewise, the Nevada judgment questioned in Henry v. Henry, supra, under the New Jersey law.
In the instant case respondent concedes the Kansas divorce is voidable rather than void. The broad rulings of the Michigan and Kentucky cases are not called for. Section 12 of our act states it is "remedial;" "its purpose is to settle and to afford relief from uncertainty and insecurity . . .;" and it is to be "liberally construed and administered." Liberality of construction and administration should not extend its scope beyond its import. Its function as declared by its title is to authorize and empower "circuit courts to declare rights, status and other legal relations, by declaratory judgments and decrees." If remedial, it does not abolish or furnish an additional for an existing adequate remedy but supplies a deficiency or abridges a superfluity in the law. [3] The controversy between Cora A. Liechty and the Kansas City Bridge Company has its foundation in Mrs. Liechty's claim under the Missouri Workmen's Compensation Law, and only incidentally involves the divorce proceedings had in the State of Kansas. Our Declaratory Judgment act was not intended as a substitute for a new trial or an appeal or review proceedings, or a mode for testing, in the circumstances here involved, the finality of a judgment. To so hold would permit the act to add to rather than relieve from uncertainty and insecurity and be in contravention of its fundamental principles and beyond the purposes and scope of its title and provisions. We rule that the Missouri Declaratory Judgment act may not be invoked to test the validity of a judgment roll, admittedly valid and regular on its face, of a competent court in an action against a stranger to the record of said judgment.
Our provisional rule in prohibition is made absolute. Cooley and Westhues, CC., concur.
The foregoing opinion by BOHLING, G., is adopted as the opinion of the court. All the judges concur.