author: FABIS, J.

text:
    BERTRAM J. BUSSIERE’S ADMINISTRATOR; WILLIAM R. FOSTER, Appellant, v. T. M. SAYMAN.
    In Banc,
    April 2, 1914.
    1. JURISDICTION: Transfer of Causes From Court of Appeals, The Supreme Court has jurisdiction where a cause has been transferred to it by a court of appeals on the ground that its decision therein is in conflict with a prior decision of another court of appeals, although the court of appeals in the cause transferred followed the last previous ruling of the Supreme Court.
    2. APPEAL: Statutory. Appeals are wholly statutory, and there can be no appeal unless the statute authorizes it.

      3.----: From Order Setting Aside Default Judgment. There can be no appeal from an order setting aside a default judgment, entered after default noted and inquiry as to damages had. So that where defendant was duly summoned more than thirty days before the first day of the term, but defaulted and came not, and an interlocutory judgment was entered against him and the cause continued; and at the next term the cause came on for hearing, and defendant though duly called came not, and an inquiry of damages was had and after the evidence was heard judgment for plaintiff was rendered; and thereafter and during the same term defendant appeared and by his motion in writing moved the court to set aside the judgment rendered against him, and that motion was sustained and an order made setting aside the judgment, plaintiff is not entitled to an appeal from said order. [Following Crossland v. Admire, 118 Mo. 87, and disapproving Miller v. Crawford, 140 Mo. App. 711.]
    4. -: -: Final Judgment. The words of Sec. 2038, R. S. 1909, allowing an appeal /‘from any special order after final judgment in the cause,” do not authorize an appeal from an order setting aside a judgment by default, because if the judgment is set aside there is no final judgment.
    5. -; In Case of Personal Service: Query. The query is raised in this case as to whether Secs. 2101 and 2104,. R. S. 1909 (concerning the setting aside of default judgments and the review of judgments), apply or were ever intended to apply to any defendant who was personally served, or to a defendant who appeared after substituted service, and as to whether or not they should be restricted to apply to those defendants only who are brought in by publication and do not appear at all; but the query is not answered, because its answer is not necessary to a proper decision of the case in hand.
    Appeal from St. Louis City Circuit Court. — HonJ James E. Withrow, Judge.
    Appeal dismissed.

      Frank A. Habig and Charles A. Bouts for appellant.

      Leahy, Saunders & Barth for respondent.
   FABIS, J.

This case comes to upon the certificate of the St. Louis Courtof Appeals, for the reason that in the opinion of that conrt the conclusion reached by it herein, while following this court, is in conflict with the opinion of the Kansas City Court of Appeals in the case of Miller v. Crawford, 140 Mo. App. 711. The facts and the point first mooted appear from the statement of the learned judge who wrote the opinion of the court, thus:

“This is an appeal from an order of the court setting aside a final judgment by default, and the immediate question for consideration pertains to the right of Appeal in such cases. The suit is on account for the reasonable value of advertising placed by defendant for plaintiff under a contract.” [Apparently in the preceding clause the words “defendant” and “plaintiff” have been transposed by a typographical error. Since the rendition of the opinion herein by the St. Louis Court of Appeals plaintiff has died and the case has been properly revived in the name of his administrator.]
“It appears that defendant was duly summoned more than thirty days before to answer plaintiff’s petition on the first day of the October term, 19101, but he defaulted and came not. Thereafter, and during the October term of court, to-wit, on November 25, 1910, an interlocutory judgment by default was entered against defendant and the cause continued. At and during the succeeding December term, 19101, of the court, and on the fourth day of January, 1911, the cAuse came on for hearing, and an inquiry of damages was had. Defendant, though duly called, came not, and after the evidence was heard, the court gave judgment for plaintiff for the sum of $3693.95. Fourteen days thereafter, and during the same, or December, 1910, term of court, and on the 18th day of January, 1911, defendant appeared and by his motion in writing moved the court to set aside the judgment rendered against him. Thereafter, on March 20, 1911, and during the February term, 1911, of the court, to which the motion had been continued, the motion to set aside the judgment was sustained by the court and by its ■order of record the final judgment entered January 4, 1911, was set aside and vacated.”

From the action of the circuit court in vacating and setting aside the judgment so by it theretofore rendered by default, plaintiff, as before said, has appealed.

I. Some contention is urged by respondent against our jurisdiction to hear and determine this case, for the reason, as averred in the briefs, that “the St. Louis Court of Appeals in Bussiere v. Sayman, 171 Mo. App. 11, in certifying\ this case to the Supreme Court, stated that it was plain that under the decision in Crossland v. Admire, 118 Mo. 87, this case was not appealable (followed in the case of Breed v. Hobart, 187 Mo. 140, l. c. 143-144), but certified it on the ground that an order of dismissal conflicted with the decision of the Kansas City Court of Appeals in Miller v. Crawford, 140 Mo. App. 711.”

The point as made has some new phases, due to the fact that the St. Louis Court of Appeals held to the same views touching whether an appeal lies upon the facts here, as were held by the Kansas City Court. of Appeals in the case of Miller v. Crawford, supra, but, while holding the opinion that an appeal lies, the. learned judge of the St. Louis Court of Appeals felt constrained to follow the path of constitutional duty and to dismiss this appeal on the authority of Crossland v. Admire, 118 Mo. 87. However, we deem it absolutely clear, that this contention is not well taken; that under section 6 of the Amendment of 1884, to the Constitution, and under the repeated rulings of this court construing that section, this case has come to us from the St. Louis Court of Appeals, with plenary jurisdiction to hear and determine it just “as in the case of jurisdiction obtained by ordinary appellate process.” In short, we are empowered to determine it because the Court of Appeals found and adjudged that a conflict existed between the views herein expressed by them (Bussiere v. Sayman, 171 Mo. App. 11), and the opinion of the Kansas City Court of Appeals in the Miller-Crawford case, supra. The statement of the point and the facts of the case settle it, without argument. Matters and things analogous hereto and decisive hereof, are discussed in the late case of Epstein v. Pennsylvania Railroad Co., 250 Mo. l. c. 16. Since that case is recent and settles this point here against the contentions of respondent, we need not again take up space with it.

II. Another strenuous contention of respondent, to-wit, “that from an order of the court nisi sustaining the motion of defendant to set aside a judgment by default no appeal is given by our statute, ’ ’ next deserves our attention. If this contention of respondent is well taken, we must dismiss this appeal. The St. Louis Court of Appeals dismissed it as not appeal-able; not because in their opinion no appeal lay, but because this court in the case of Crossland v. Admire, supra, had held that no appeal lies in such case. In short, they give it as their opinion that we are in error in our holding here on this itching question, but they followed us as in duty bound. [Sec. 6, Amendment of 1884 to Constitution.]

There is no sort of doubt that the case of Miller v. Crawford, 140 Mo. App. 711, is in direct conflict with the holding of the Supreme Court in the ease of Crossland v. Admire, 118 Mo. 87. Neither is there' any doubt that the rulings of the appellate courts of this .State are almost irreconcilable, and that the whole question- is now by many diverse rulings in almost inextricable confusion. This confusion began,.since the amendment of 1801 to the statute which confers the right of appeals in civil cases. In the latter year this section was so amended as to largely increase the number of interlocutory — as contradistinguished from final — orders from which in a pending case appeals might be taken. [Laws 1801, p. 70.] Ever since 1801 (except for the amendment of 1895-, conferring the right of appeal from certain interlocutory orders concerning receivers, Laws 1895', p. 91, and not pertinent to this discussion,-and pertinent only as one of the reasons 'why this court cannot keep up with its docket), this section'has read thus:

“Any party to a suit aggrieved by any judgment of any circuit court in any civil cause from which an appeal is not prohibited by the Constitution, may take his. appeal to a court having appellate' jurisdiction from any order granting a new trial, or in arrest of judgment, or order refusing to revoke, modify or change an interlocutory order appointing a receiver or receivers, or dissolving an injunction, or from any interlocutory judgments in' actions of partition which determine the right's of the parties, or from any final judgment in the case, or from any special order after final judgment in the cause;'but a failure to appeal from any action or decision of the court before final judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeál taken from the final judgment in the case. The Supreme Court shall summarily hear and determine all appeals from orders refusing to revoke, modify or change an' interlocutory order appointing a receiver or receivers, and for that purpose shall, on motion, advance the same on its docket. ’ ’ [R. S. 1900, sec. 2038.]

It is a minor premise to this discussion that -appeals are wholly creatures of the statute, and that the right' of appeal does not' exist except where expressly given. This is fundamental, or if not fundamental, well-settled. [Snoddy v. Pettis County, 45 Mo. 361; Ackerman v. Green, 201 Mo. 231; State ex rel. v. McElhinney, 241 Mo. 592; State v. Vaughn, 83 Mo. App. 457.] Clearly then unless the section above set out, by virtue of the amendments made thereto in 1891, confers the right of appeal in this sort of case at the stage attained herein when this appeal was taken, this appeal was premature and must be dismissed.

It is not necessary to here collate, or even refer to, the many early cases upon this question. But as forecast, since the amendment of 1891 caused all the trouble, we need not go beyond it; prior holdings of cur courts on this point prove nothing.

The first case in this court after the statute was amended in 1891 which dealt with this matter of whether an appeal lies in this sort of case, was the case of Crossland v. Admire, 118 Mo. 87, which was decided in 1893. There the section of the statute as it now stands — so far as this question goes — was before the court, but it was ruled nevertheless, that an appeal does not lie to a plaintiff from an order of the circuit court vacating a default judgment. While the' argument of the court in the opinion in that case is largely directed to the question whether such a case is appeal-able because it is an appeal taken from “an order granting a new trial,” yet the case was upon the facts on all-fours with the instant case and it was the duty of the court to hold in judgment every point and clause of section 2038', by which jurisdiction of the appeal could be retained. We must assume, therefore, that the learned jurist who wrote the opinion of the court did so and that he looked at the matter from every angle. If we are to hold that this appeal will lie, we must overrule the Crossland-Admire case. This court assumed jurisdiction in the case of Hulbert v. Tredway, 159 Mo. 665, which was an appeal by plaintiff from an order vacating a judgment nil dicit, and not on default, but which is on every principle involved on all-fours with the instant case. In that case no question whatever as to the existence of the right of appeal in plaintiff was raised, nor was the point held under judgment. The ruling in the Crossland-Admire case was followed in the case of Breed v. Hobart, 187 Mo. 140, which latter case was, however, decided correctly without any doubt, since the motion to vacate the default judgment was filed therein after the default was noted, but before an inquiry as to the damages was had, and before any final judgment was rendered. In the case of Miller v. Crawford, 140 Mo. App. 711, it is incorrectly assumed and stated that the appeals were taken in both the case of Crossland v. Admire and the Breed: Hobart case after default was noted, but before an inquiry as to damages was had or any final judgment was rendered. As to the Crossland-Admire case, the learned Kansas City Court of Appeals was in error in thus assuming. So that the Miller-Crawford ease is in direct conflict with the holding of this court in the Crossland-Admire case, but not so in conflict with the Breed-Hobart case.

.Learned • counsel for appellant calls our attention to the cases of Bank v. Kingston, 204 Mo. 687; State ex rel. v. Riley, 219 Mo. l. c. 695; Ewart v. Peniston, 233 Mo. 695, and Shuck v. Lawton, 249 Mo. 168, as ber ing cases where this court assumed and held jurisdiction on appeals of the identical sort here in question and in controversy, but wherein they concede the point was not mooted or passed on. “We have examined all of these cases and are wholly unable to detect in them any similitude, except by faint analogy, and by an application of- a sort of cy pres doctrine, which doctrine in such case (and in fact always when transplanted from its usual legal habitat) is never satisfying and often dangerous. The case of Bank v. Kingston, 204 Mo. 687, was a petition in the nature of a bill in review filed by defendants who had neither been personally served, nor appeared in the case. For such a situation plain statutes not involved in any wise in the instant ease would seem to he ample to afford relief. [Sees. 2101-2104, E. S. 1909.] Both the cases of State ex rel. v. Riley, supra, and Shuck v. Lawton, supra, were cases where the judgment rendered was attacked for errors of fact, in the one case patent of record and destroying jurisdiction (Shuck v. Lawton, supra), and in the other for an error of fact made to appear and supported by evidence dehors the record, which procedure it was said in that case (State ex rel. v. Riley, 219 Mo. l. c. 695), “is in the nature of an independent and direct attack upon the judgment in the court committing the error. ’ ’ In other words, these two cases in a way applied our code of procedure to a condition to-which formerly the writ of error coram nobis was applied at common law. The case of Ewart v. Peniston, supra, was not a default judgment at all.. The chief point held in it was touching the power inherent in courts to so far retain their orders and judgments in the breast of the court during the term at which such orders were made, as that for good cause shown and in the interest of right and justice the same' could be set aside by the court sua sponie. ' With this doctrine, which we deem-just, sane and wholesome, we have ,no quarrel.

Some of the cases to which our attention has been called, are cases where the defendants against- whom default judgments were taken, appealed, upon the refusal of the court nisi to set aside such judgments. It needs no argument or discussion to demonstrate that since a defendant, when he fails to get favorable action on his motion to vacate a judgment by default, has. reached the last ditch, unless an appeal lies to him the judgment as to him is absolutely a “final judgment in the case” (Section 2088, supra). Manifestly such an appeal may be justified for several other reasons; even with some degree of logic for that it is “a special order made after final judgment in a case.” For there is then, as to such defendant an existing final judgment to which the motion to vacate is ancillary. Whether in such case the plaintiff or the defendant prevail in the motion makes a vast, difference in the result and likewise in the law, just as there is always a vast difference in the result and therefore in the law, according as the trial court may exercise or refuse to exercise the inherent power resting in it of controlling its orders and judgments during the term at which they were made.

We are led then by this discussion and examination of cases ruled and cited, back to the question of whether we should follow the case of Crossland v. Admire, 118 Mo. 87, decided by this court, or the case of Miller v. Crawford, 140 Mo. App. 611, decided by the Kansas City Court of Appeals. The Crossland-Admire case as we find is the only one in direct point where we have ruled on this identical question, and the Miller-Crawford case is likewise the only one we have found where the courts of appeals have so decided this point. The St. Louis Court of Appeals argue in their opinion in the instant case the correctness of the holding in the case of Miller v. Crawford, supra, but for the reasons already set out they do not so rule. The case of Billingham v. Miller, 115 Mo. App. 154, as to the question actually before the court and there ruled, illustrates what we suggest above as to the difference in result as well as in law, according as the court below sustains or overrules the motion to vacate. La the latter case the learned jurist who wrote the opinion of the St. Louis Court of Appeals, by way of dictum and arguendo, suggested that while no relief could, upon the facts in that case, be afforded to defendant who had appealed, yet ‘ ‘ a party in default may obtain relief against a judgment even after it is final if he has good grounds and adopts the proper procedure; namely, that prescribed by section 2101 of the Revised Statutes.” (Italics and change of section number ours.) This dictum was followed as a rule of decision by the Kansas City Court of Appeals in the recent case of Santa Fe Car Icing Co. v. Kemper, 166 Mo. App. 613, which latter case therefore though similar on its facts to the instant case, is not in conflict herewith, and does not follow the Miller-Crawford case, supra. We may suggest parenthetically a query here as to whether, their history and the rulings thereon being regarded (Smoot v. Judd, 184 Mo. 508; Howard v. Scott, 225 Mo. l. c. 708), sections 2101 to 2104 do apply or were ever intended to apply to any defendant who was personally served, or to a defendant who appeared after substituted service, and whether it be not a fact that they are open to those defendants only who are brought in by publication and who do not appear in the case at all? This query we need not and do not answer or decide, but suggest it as worthy of examination with great care in the next case in which it may be a live question. It is not a live one in this case.

The choice being now, as our examination and discussion of all of the cases found by us or called to our attention manifestly show, between our holding in one case and that of the Kansas City Court of Appeals, likewise in one case, we ought in the interest of justice and fairness to examine and analyze the sole reason upon which, if it exists, the right of appeal here must be bottomed. Turning to section 2038, we note that the only language upon which a doubt can hang is that found in the clause: “or from any special order after final judgment in the cause.” From this language it is urged and argued and held the right of appeal arises here. [Miller v. Crawford, supra; Bussiere v. Sayman, supra.] Biut when we carefully look to the words used is this clearly or necessarily so? The word “special,” is in its meaning and definition as found in the dictionaries, so varied, varying and ‘(general,” as that we frankly concede there is no argumerit to be derived from its use in trie troubling clause. Is there here left any final judgment in the cause, when the appeal is prayed? Clearly not, because the motion being acted on favorably by the court has utterly wiped the final judgment off the record and the earth. It is not and cannot be an appeal after final judgment, because to my mind such a term could be applied only where a final judgrixent still existed, not a case where it utterly ceased to exist. I can readily see and appreciate the legal correctness of an appeal being permitted from a special, i. e., particular, ancillary order, made after the rendition of a final judg:ment which judgment still exists. Many such occur to my mind, all of which we have held are appealable, and so clearly from the right conferred by the identical language of the above clause, for there is no other language applicable, e. g., an appeal from an order made after final judgment, taxing costs (State ex rel. v. Walker, 85 Mo. App. 247); from an order'made after final judgment allowing attorney’s fees in a case where such fees are allowable, of which there are many; from an order setting', aside a sale on execution (McAnaw v. Matthis, 129 Mo. 142); from an order assessing damages on an injunction bond after final order of dissolution thereof. [Railroad v. Sweet, 110 Mo. App. 100.] All of these are ancillary to a subsisting judgment. They are likewise indubitably included in the category of matters appealable by virtue of the clause of the section here, under discussion; yet they are not germane or even more than analogous, in their nature or legal effect to the point before us. [2 Cyc. 600, note 34.]

Moreover, an appeal in such a case as the instant one at the stage the same was taken is useless and wholly unnecessary. The amendment of 1891 was itr self largely useless. It made two appeals to grow in a case where but one grew before. It enabled litigants to. halt a case in many instances in the middle and to come up to an appellate court merely to také the sense •of the court upon an interlocutory and indecisive point —sometimes to halt a case many times and take many ■such opinions. [See Little River Drainage District cases: Little River Drainage District v. Tomlinson, 245 Mo. 1; Little River Drainage District v. Railroad, 236 Mo. 94; State ex rel. v. Sheppard, 245 Mo. 50; Houck v. Little River Drainage District, 248 Mo. 373.] We are not condemning this amendment utterly; we are merely saying it was largely useless; there may have been a crying evil or two corrected by it. But since the latter fact, if it exists, is not readily discernible, and since it is not necessary to a decision, we need' not pause here to examine if it be so. However, the section under review may in all fairness of construction be said to carry upon its very face and in its own language this identical criticism of much of its contents. For it says, “but a failure to appeal from any action or decision of the court before final judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case.”,

Not only is this rush and hurry to appeal on indecisive, intermediate, or interlocutory orders unnecessary as a general proposition, but it was unnecessary here in the instant case. Two remedies it would seem were open to appellant here: > (a) he might have stood mute in a subsequent call of the case, and suffering a dismissal thereof, have appealed (Harkness v. Jarvis, 182 Mo. 231); or (b) saving the point by a proper exception and term bill if need arose, appealed if he lost the whole case, under ordinary rules regulating appeals, and under the saving grace of the language of the section which we emphasize above by italics. May-hap, then, the heat and burden of appeal would have shifted to the other side of this case though this we do not decide.

The rule that an appeal does not lie from an order of the trial court vacating a default judgment is general in the several jurisdictions. [Thomas v. Thomas, 10 Colo. App. 170; Higgins v. Brown, 6 Colo. 148; People v. Neal, 3 Ill. App. 181; Masten v. Indiana Car Co., 19 Ind. App. 633; Kermeyer v. Railroad, 18 Kan. 215; Woodcock v. Parker, 34 Me. 593; Roh v. Vitera, 38 Neb. 333; Ledbetter & Co. v. Vinton, 108 Ala. 644; Stevens v. Glover, 83 N. Y. 611; McAllister v. Kuhn, 96 U. S. 87.] There are cases to the contrary, but so nearly unanimous is the rule against appealability, that Cyc. states that such is the rule without exception thus:

“By statute in' some states special orders after final judgment, or orders on a summary application after judgment, are appealable. But an order of the court vacating a judgment, order, or decree theretofore rendered in the cause, or refusing to vacate a judgment, order, or decree theretofore rendered, is not, as a rule, appealable. In some states no appeal lies from an order denying1 a motion to set aside a default. In other states such orders are appealable. No appeal, however, lies from an order setting aside a judgment by default.” [2 Cyc. 600L601.]

Of course nothing is plainer than that since the right to appeal is wholly statutory, the holdings in other jurisdictions are of small value as proof of the right of the rule here urged. But these cases from other jurisdictions are illuminating in determining the advisability and necessity of an appeal in such a case.

Having thus carefully examined the ruled cases, and the statutes relied on as creating the right of appeal, and the necessity, or lack thereof, for an appeal at such a stage, we are unable to see any sufficient reason why we should overrule the case of Crossland v.; Admire, supra. That case was ruled by a most able and painstaking jurist, but recently as the age of the law is, and at a time when the statute on this point was just as it now stands; it was so ruled without dissent, one judge absent, by the Division hearing it. The' conditions have not changed in favor of a different rule. It may well be that since a different rule would clog the courts and hinder and delay the business thereof, that conditions have changed in favor of the rule announced-in the Crossland case. The case of Miller v. Crawford, 140 Mo. App. 711, should be followed no longer.

Since these views result in dismissing the appeal herein, we need not examine the merits. Let the appeal be dismissed.

All concur.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    EMMA DORRANCE v. JOHN DORRANCE, Appellant.
    In Banc,
    April 2, 1914.
    1. FRAUDULENT DIVORCE: Equitable Relief: Unconstitutional Statute. The Constitution has expressly conferred equitable powers on the courts and vests the circuit courts with original jurisdiction in all civil cases not otherwise provided for; and if Sec. 2381, R. S. 1909, forbidding a petition for the review of a judgment for divorce, was intended to prohibit a court of equity from setting aside a decree obtained by positive frauds upon the circuit court granting it, it is unconstitutional, in that it would be an unreasonable attempt to shear the courts of their constitutional powers.
    2. -: Suit to Annul: And for Maintenance: Misjoinder of' Causes. An objection that separate causes of action have been improperly joined in the one petition should be raised either by demurrer or answer, and cannot be raised for the first time on appeal. So that where a wife brings suit to have a judgment for divorce set aside on the ground that it was obtained by fraud, an objection, made for the first time on appeal, that the trial court possessed no jurisdiction of a second count in the petition asking for an allowance for maintenance, for the reason that a statutory action for maintenance cannot be intermingled or joined with an equitable action to set aside a judgment for divorce fraudulently obtained, must be considered waived. Jurisdiction of equitable actions is expressly conferred upon circuit courts by both the Code and the Constitution, and jurisdiction of an action of a married woman for maintenance is expressly conferred on such courts by statute-,, and the statutes provide that an objection that several causes-of action have been improperly united in the petition shall be raised either by demurrer or answer, and if not so raised shall be deemed waived.
    3. -: Maintenance of Wife Ad Interim. Where the circuit-court has set aside a judgment for divorce obtained by a. husband against his wife and restored her to all the marital rights which she enjoyed before such divorce was granted,. . -the- court -has power to grant her an allowance for maintenance between the time the fraudulent divorce.,was obtained and the time it was set aside, upon a timely application therefor. Such an allowance will not be denied on the ground’ that between such dates she was not his wife.
    4. — ' — 'i Allowance of Attorney’s Fee for Prosecuting Suit td Annul. The circuit court may properly allow to the wife attorney’s fee for services rendered by such attorney in prosecuting her suit to annul the judgment for divorce obtained by her husband’s fraud, on the ground that, both by statute and the common law, the husband is compelled to pay for the necessaries of the wife. •
    5. -: Allowance of Attorney’s Fee for Suit for Maintenance. And -likewise the circuit court may allow to the wife an attorney’s fee for services rendered by the attorney for prosecuting an allowance for the maintenance of the deserted wife between the time a divorce was fraudulently obtained by her ■ 'husband and the date such fraudulent judgment was set aside, on- the ground that the unlawful conduct of the husband has rendered necessary an action for her separate support. But that holding is not to be understood. as referring to an allowance of suit money penitente lite in an action by the wife for maintenance.
    Appeal from St., Louis City Circuit Court. — Row. Eugene McQuillin, Judge.
    Aeeikmeu.

      C. Orrick Bishop and' Gerson B. Silverman for appellant.
    (1) By Sec. 2380', R. S. 1900, appeals in divorce suits must be allowed at the term in which the judgment or decree appealed from, was rendered, or a writ of error must be sued out within sixty days after the rendition of the judgment. Section 2381 is as follows: “No petition for review of any judgment for divorce, rendered in any case arising under this chapter, shall be allowed, any law or statute to the contrary notwithstanding.” The amended petition upon which the judgment of the lower court is supported, is a bill of review; the statute is' clear and emphatic; .the courts are powerless to legislate an exception into it. In the light of the dissenting opinion by Woodson, J.,, in Dorrance v. Dorrance, 242 Mo. 666, and the authorities therein cited, the per curiam opinion then rendered ought now be overruled, and the Supreme Court in this proceeding can correct the error that it committed 'in. that decision. ' Salisbury v. Salisbury, 92 Mo.- 683.' (2) The court had no jurisdiction over the subject-matter alleged in the second count of plaintiff’s amended petition. The court had no power, right, of jurisdiction to hear any evidence at all upon the second count of plaintiff’s amended petition, or determine any alleged wife abandonment and failure to support. The foundation and the jurisdiction given to the court for the enforcement of Sec. 8295, R. S. 1909, is that the plaintiff, at the institution of the suit and at the trial of the cause under the second count of the petition, must be the wife of the defendant. The entire record of this case, up to the 20th day of December, 1912, up to the date of the trial of this case, shows that the efforts made in the circuit court and then in the Supreme Court by way of obtaining evidence, and by way of legal services rendered, and the Supreme Court’s decision itself, in 242 Mo. 625, shows beyond any question at all, that the only matter considered, fought for, and finally determined up to the date of the trial of and the judgment rendered was the sole question in equity of setting aside the alleged fraudulently procured judgment for divorce, and previous to said trial the matters contained in the second count of the amended petition as to the question of abandonment and refusal to •support was not even mentioned by way of record, or by any of the attorneys in the cause. The final judgment rendered in the divorce proceeding is not open to inquiry in a collateral proceeding, and such judgment cannot be impeached or attacked collaterally by a party to the judgment. Johnson v. Stebbins, 167 Mo. 325;-Bedford v. Sykes, 168 Mo. 8. The want of jurisdiction over the subject matter of an action may be taken advantage of at any time. Henderson v. Henderson, 55 Mo. 534; State v. Railroad, 187 Mo. 439'; Thomas v. Mercantile Co., 114 Mo. .App. 109. Want of jurisdiction of the subject matter cannot be waived. Graves v. McHugh, 55 Mo. 499;» Davis v. Jacksonville, 126 Mo. 69. Te entitle the plaintiff to separate maintenance she must be the valid wife. Pyatt v. Pyatt, 90' 111. App. 210. If a husband deserts his wife without justifiable ■cause and fails to support her, it shall be the duty of the court to award her maintenancs as long as the desertion continues. “It is beyond the power of the ■court to commingle the two causes of action. ’ ’ Sharpe v. Sharpe, 134 Mo. App. 281.

      Loomis G. Johnson and Horace H. Blcmton for respondent.
    (1) This court reversed the judgment of the circuit court, sustaining a general demurrer to plaintiff’s petition, which contained two counts; and that decision is res adjudicata as to all matters contained in that petition. Dorrance v. Dorrance, 242Mo. 625; Story’s Eq. PI. (9 Ed.), sec. 446, p. 375; Johnson v. United Railways, 243 Mo. 278; Ins. Co. v. Smith, 117 Mo. 296; Spratt v. Earley, 199' Mo. '502; Chapman v. Railroad, 146 Mo. 494; Gwin v. Waggoner, 116 Mo. 151; Abies v. Ackley, 133 Mq. App. 600; Fisher v. Patton, 134 Mo. 51. (2) The court had the inherent power under its equity jurisdiction as well as under Sec. 8295, R. S. 1909, to adjudge and decree to plaintiff support and maintenance and attorney’s fees. 2 Story’s Eq. Jnr. (13 Ed.), p. 757, sec. 1423a; 2 Am. & Eng. Ency. of Law (2 Ed.), p. 99; '9 lb., pp. 739, 740; Wyrick v Wyrick, 162 Mo. App. 732; Hedrick v. Hedrick, 157 Mo. App. 636; Bebrle v. Belirle, 120 Mo. App. 680; Harding v. Harding, 144 111. 597; Johnson v. Johnson, 125 111. 510; Long v. Long, 78 Mo. App. 32; Cochran v. Cochran, 42 Neb. 612; Smithson v. Smithson, 37 Neb. 535; Shrader v. Shrader, 36 Fla., 515; Mitchell v. Mitchell, 72 Pac. 1064; Pickel v. Pickel, 243 Mo. 641; Daniels v. Daniels, 10 Pac. 668; Stewart v. Stewart, 141 S. W. (Ark.), 193, (3) The marital relation or the rights growing ont of that relation is the subject of this action, and the count to set aside the decree of divorce for fraud and the count for support and maintenance were properly joined. Sec. 1795, R. S. 1909; Bliss on Code Pleading (2 Ed.), secs. 125, 126; Morrison v. Herrington, 120 Mo. 668; Henderson v. Dickey, 50 Mo. 161; Ziedeman v. Molosky, 118 Mo. App. 106; Burnside v. Weyman, 49 Mo. 358; Baker v. Daniel, 178 Mo. 447; Shinn v. G-uyton, 109 Mo. App. 557; McHovey v. Ins. Co., 44 M-o. App. 428; Blair v. Railroad, 89 Mo. 394; Courtney v. Blackwell, 150 Mo. 245; Duvall v. Tinsley, 54 Mo. 93; Lane v. Dowd, 172 Mo. 174; Jewett v. Railroad, 45 Mo. App. 58; Hamlin v. Tucker, 72 N. C. 502. .
   BROWN, J.

Action to set aside divorce and for maintenance and suit money. From a decree for plaintiff defendant appeals.

Plaintiff’s amended petition, upon which the trial below was had, charges that on May 25, 1906, she was the lawful wife of defendant; that on said last named date defendant instituted a suit against her for divorce in the circuit court of St. Louis city; that defendant fraudulently induced said circuit court to assume jurisdiction of said suit by falsely alleging in his petition that he was a resident of St. Louis City, when, in truth and in fact, lie was at that time a resident of Chariton county, Missouri.

That at the time said action 'for divorce was instituted hy defendant he well knew that plaintiff was a resident of Kansas City, Missouri, and could he served in said city with a summons; that for the purpose of fraudulently procuring a divorce from the plaintiff without her knowledge, defendant made and attached to said petition for divorce an affidavit falsely alleging and reciting “that this plaintiff had absconded from her usual place of abode, and that although said John Dorrance had diligently sought to locate her he was unable to do so or to learn her whereabouts, and that this plaintiff had concealed herself so that the ordinary process of law could not be served upon her in this State, and praying, therefore, an order of - said court that notice of said suit be given by publication.” That upon such false allegations in said petition, and the affidavit attached thereto, defendant fraudulently caused and induced the circuit court of said city of St. Louis to issue an order of publication whereby said court attempted to obtain juisdiction of plaintiff. That by reason of said fraudulent acts of plaintiff in bringing said suit for divorce in a county where he did not reside, and by serving her with publication when her address and whereabouts in this State were personally known to said defendant, she obtained no knowledge of the pendency of said action and made no defense thereto.

That on November 9, 1906, defendant, by certain false and perjured evidence, induced the circuit court of St. Louis City to grant to him a divorce from plaintiff on grounds which had no existence in fact, which said divorce was obtained at an ex parte hearing without any knowledge on the part of plaintiff that said suit had'been instituted. Wherefore, plaintiff prayed that, on account of the aforesaid fraudulent acts of defendant, said judgment of divorce be set aside, and that plaintiff be restored to tbe marital rights which existed between her and defendant before said judgment was entered.

A second count in plaintiff’s petition charges, defendant with living in open adultery with a negro woman and other gross violations of his marital obligations, whereby it was rendered impossible for plaintiff and defendant to live together in the future as man and wife. Wherefore, plaintiff prayed that defendant be required and adjudged to pay to her a reasonable attorney’s fee for prosecuting this action; a reasonable allowance for her support, and a reasonable .sum for her support during the pendency of this action.

To this petition defendant interposed a general demurrer, which was by the trial court sustained, and plaintiff declining to plead further, a final judgment was rendered against her, from which she appealed to this court. Upon a hearing of her appeal by this court the judgment of the circuit court of St. Louis City was reversed, and the cause remanded. See Dorrance v. Dorrance, 242 Mo. 625, where the allegations of plaintiff’s petition are more fully recited.

When the cause was remanded to the circuit court, the defendant filed a general denial, but did not, either by demurrer or answer, allege that there was a misjoinder of causes of action in plaintiff’s petition.

Upon a re-trial of this cause in the circuit court of St. Louis City on December 20, 1912, that court made a finding in favor of plaintiff on the first count of her petition, and set aside the divorce and adjudged the defendant'to pay the plaintiff $7500' for her attorney’s fees in prosecuting this cause. On the second count of her petition the finding was for defendant, and it was adjudged that said second count be dismissed without prejudice.

On the 31st day of December, 1912, during the same term at which the decree of December 20, 1912, was entered, the plaintiff filed her motion to modify the judgment, by which the second count of her petition was dismissed and to allow her on said second count $6000, being the amount expended for her support and expenses incurred in prosecuting this cause,'and $2500 per annum for her permanent separate support and maintenance. On January 31, 1913, being a part of the same December term, the plaintiff’s motion to modify coming on to be heard, and both parties appearing, the court set aside and vacated its judgment of December 20', 1912, and the cause was again submitted upon the pleadings and evidence theretofore adduced. The court thereupon found in favor of the plaintiff on both counts of her petition.

On the first count the court set aside the decree of divorce, as prayed, and restored plaintiff to all her marital rights as the wife of defendant. And on the second count in her petition the court, of its own motion, awarded her $7500 attorney’s fees incurred in bringing and prosecuting this action; and also awarded her $6000 for her support and maintenance since the 25th day of May, 1906, and a further allowance of $2500 per annum for her future support and maintenance, which latter amount the court decreed should be paid in monthly instalments on the 15th day of each month, beginning on the 15th day of February, 1913; and retained jurisdiction of the cause for the entry of such further orders touching the allowance ,of maintenance and suit money as may hereafter be deemed proper.

From this last mentioned, or modified, judgment, the defendant appealed and, without bringing up the evidence upon which the judgment is predicated, asserts (1) that we should upon the record proper reconsider and reverse the rule and decision announced by this court when the cause was here upon the first appeal; (2) that plaintiff is not entitled to any of the relief granted to her under the second count of her petition, because an action for maintenance cannot be coupled with an action for equitable relief; (3) that as plaintiff was not the wife of defendant between Novena-' ber 9, 1906, and January 31, 1913 (while the decree of divorce was in force) no allowance can be made for her support during that period of time; and (4) that there is no law to support plaintiff’s allowance for attorney’s fees.

I. "We decline to recede from the rules of law announced in onr majority opinion when this case was. here upon the first appeal. [242 Mo. 625.1

-r, . ~ If section 2381, Eevised Statutes 1909, forbidding a petition for the review of a judgment for divorce, is intended to prohibit relief in equity against such frauds as were perpetrated upon the circuit court and upon the plaintiff in obtaining the divorce granted to defendant, then clearly such section is unconstitutional. The power of courts to grant equitable relief against frauds is as firmly interwoven in onr system of jurisprudence as the power to grant relief at law.

The people having expressly conferred equitable powers upon the courts of this State by the very Constitution which calls such courts into existence (Sec. 1, art. 6, Constitution of Missouri), the General Assembly cannot withdraw or unreasonably restrict such powers without violating the organic law.

Section 22., article 6, Constitution of Missouri, vests the circuit courts with original jurisdiction in all civil eases not otherwise provided for. In the face of the foregoing constitutional powers, for the General Assembly to undertake to nail up the doors of the courts of equity by saying to them that whatever may be done under the forms of the divorce statutes is too sacred to be inquired into is an unthinkable anomaly.

II. The insistence of defendant that the trial court possessed no jurisdiction, of the second count of plaintiff’s petition, for the alleged reason that a statutory action for maintenance cannot he intermingled or joined with an equitable action to set aside a fraudulent divorce, is not before us on this appeal, for the reason that defendant waived that issue by failing to raise the question of misjoinder of causes of action by either demurrer or answer.

This pretended issue is somewhat stale. • Section 1800, Revised Statutes 1909, provides that when it shall appear on the face of a petition that “several causes of action have been improperly united” the defendant may call attention to such misjoinder by demurrer; and section 1804 provides that all of the objections to a petition enumerated in section 1800 which are not raised by demurrer or answer shall be deemed waived, except objections to the jurisdiction of the court over the subject-matter, and the failure of the petition to state a cause of action. Under these statutes if there was a misjoinder of causes of action in plaintiff’s petition, such misjoinder was waived. [Gardner v. Robertson, 208 Mo. 605; Hendricks v. Galloway, 211 Mo. 536; Stone v. Perkins, 217 Mo. l. c. 604; Jackson v. Johnson, 248 Mo. 680.] The jurisdiction of equitable actions is expressly conferred upon circuit courts both by the Code and the Constitution. [Sec. 3956, R. S. 1909; Secs. 1 and 22, art. 6, Constitution of Missouri.] The action of a married woman for maintenance is expressly conferred upon the circuit court by section 8295, Revised Statutes 1909, so that there is no foundation for the assertion that the trial court did not possess jurisdiction to hear and determine both counts of plaintiff’s petition. The defendant seems to rely almost entirely upon Sharpe v. Sharpe, 134 Mo. App. 278, to sustain his contention on this point, but we do not think the Sharpe case furnishes a basis for overruling the decisions of this court last above cited.

III. A further insistence is that the allowance of $6000 to plaintiff for her support between May 15, 1906, and the 31st day of January, 1913, is erroneous, because the allegations of plaintiff’s petition show that during a part of that period of time the defendant’s decree of divorce was in force, and the plaintiff was, therefore, not his wife and not entitled to support from him.

This insistence amounts to an assertion that, notwithstanding plaintiff was guilty of a gross fraud, both upon the court which granted the divorce and upon the plaintiff in this cause, and, notwithstanding plaintiff acted with promptness in her efforts to undo the wrongs which had been perpetrated by defendant, he should not be wholly stripped of the fruits of that transaction, but should be allowed to use the fraudulent divorce as a bar or estoppel against liability for failing to support plaintiff during the time necessarily consumed in setting the divorce aside. For a plea that is entirely outside the pale of equity and good conscience this alleged estoppel is certainly unique. If a precedent were necessary we would be strongly tempted to mate one here and now, but precedents are not wanting. Black, in the second edition of his work on Judgments, vol. 1, sec. 371, says:

“Where a judgment at law has been procured by artifice or concealment on the part of the plaintiff, and the court where the fraud has been perpetrated is not able to afford adequate relief, a court of equity will take hold of the party who has committed the fraud and will prevent his using the judgment to the injury of his adversary.”

In Freeman on Judgments (4 Ed.), vol. 1, p. 150, the rule is announced thus:

“The case of a judgment set aside for irregularity differs materially from that of one reversed upon appeal. In the latter case, the error for which the judgment is ultimately avoided is imputed to the court, and the parties are not left without protection for the” acts which they have done, based upon the judgment, and upon their confidence in the correctness of the decision of the court. But a judgment obtained irregularly, and against law or the practice of the court, is tainted with vices liable to result in its destruction, and for which the party practicing the irregularity is alone responsible. When, on account of these vices, the judgment is vacated, the party guilty of the irregularity seems to be as completely without any means of justification as though no judgment had ever been entered. ’ ’

That the divorce was obtained through fraud is the finding of the trial court, and the defendant was so well satisfied with the sufficiency of that evidence that he does not bring it here for our review.

In this case the decree of the circuit court on the first count of plaintiff’s petition sets aside the divorce and restores her to all the marital rights which she enjoyed before such divorce was granted. Under a fair interpretation of that decree it relates back to the date when the fraudulent decree of divorce was entered, and entitles plaintiff to the support which she was temporarily precluded from obtaining by the existence of such a divorce.

No one should be permitted, either at law or in equity, to set up his own wrongful acts as a bar to a just cause of action. In harmony with this view is the rule that when one who has stolen or fraudulently converted money of another is sued therefor in assumpsit, he will not be allowed to set up his theft or wrongful conversion as a defense. [Bliss on Code Pleading (3 Ed.), sec. 13; Gordon v. Bruner, 49 Mo. 570; Crane v. Murray, 106 Mo. App. 697; Mathes v. Switzer Lumber Co., 173 Mo. App. 239.]

IY. The allowance of attorney’s fees for prosecuting the suit to set aside the fraudulent divorce and for maintenance pre- , . . , sents an issue possessing some difaculties.

Section 8295, Revised Section 190‘9i, does not specifically authorize an allowance of attorney’s fees for prosecuting suits for maintenance, but our courts of appeals have uniformly approved such allowances. [Behrle v. Behrle, 120 Mo. App. l. c. 682; Hedrick v. Hedrick, 157 Mo. App. l. c. 636; Wyrick v. Wyrick, 162 Mo. App. 723.]

It may not be amiss to observe that so great is the interest of society in the husband’s duty to furnish maintenance to the wife whom he has wrongfully deserted that the failure on his part to furnish her reasonable support is made a criminal offense. [Sec. 4495, R. S. 1909', as amended Laws 1911, p. 193.]

It is a very ancient rule of the common law that the husband is liable to a third party for necessaries furnished to his wife when such husband has neglected to supply her with reasonable support. [21 Cyc. 1215, M.] When the husband without good cause deserts his wife and fails to furnish her with such support as his means will warrant, the services of an attorney to compel such defaulting husband by suit to furnish the maintenance contemplated by section 8295, supra, becomes an immediate necessity of the wife, and where, as in this case, the husband’s wrongful conduct has rendered a suit against him necessary to obtain or preserve lawful rights, of the wife, he becomes as much liable for her attorney’s fees thus incurred as he would for necessary food, clothing, etc., purchased by her on his credit.

This view finds support in the recent case of Horn v. Schmalholz in the Appellate Division of the Supreme Court of New York. [134 N. Y. Supp. 652.] ■The statutes of New York require the courts of that State to re-fix and increase the allowance for the separate support of deserted wives when the husband’s financial condition justifies such increase, and this was an action to recover from the husband for legal services rendered to a wife in prosecuting a suit, whereby a decree was obtained in increasing her allowance for separate support from $120' to $200' per month. In sustaining the judgment for services of an attorney employed by the wife, the New York Court, supra, said:

“The right to maintain the action in the case at bar is a common law right, not dependent upon the provisions of the Code relative to counsel fees, but based upon the continuance of the marital status and the husband’s common law obligation to'protect and support the wife therein. . I am of the opinion that when the Legislature conferred jurisdiction upon the Supreme Court enabling it to refix the amount provided for the wife’s support by final judgment in a separation action, the common law liability of the husband continued, requiring him to pay for the legal services necessarily and properly employed by the wife in enforcing such legislative rights, in the same degree and to the same extent as in the case of similar services necessarily rendered in the action prior to final judgment:”

Under the common law the wife did not occupy the exalted position which she does at the present time, and, while she could purchase necessary supplies on the credit of her husband, she could not maintain a suit to compel him to support her. [2 Story’s Equity Jurisprudence (13 Ed.), p. 756.] See also page 757 of the same volume, where the announcement is made that a more liberal rule prevails in America for safeguarding the rights of wives whose husbands have deserted them without cause. Section 8295, supra, did not create any new duty on the part of the husband. It only furnished a statutory remedy for enforcing rights of the wife which are as old as civilization.

We approve the ruling of our courts of appeals that the wife is entitled to suit money when the unlawful conduct of her husband has rendered necessary an action for her separate support. Such rule is eminently just and supported by the promptings of enlightened civilization.

By what is here said we do not wish to be understood as referring to an allowance for suit money pendente lite in an action by the wife for maintenance. In the action at bar the wife’s right to maintenance has been determined upon a full trial.

In this ease the wrongful conduct of the husband rendered it necessary for plaintiff to prosecute a suit to annul a fraudulent divorce before she could recover in her action for maintenance, and we hold that the allowance of attorney’s fees for prosecuting the suit to set aside the divorce were properly taxable under the second count of her petition. Her action for support would have been unavailing if it had not been preceded by or made a part of the suit for maintenance. Defendant’s wrongful, if not criminal conduct, in trying to escape liability for her support by procuring the fraudulent decree of divorce was the very cause why a judgment for her maintenance was so difficult to obtain, and it is altogether appropriate that he should bear the added expense of undoing his own intentional wrong.

The allowance of $7500 for attorney’s fees seems rather large, but defendant has not brought up the evidence upon which that judgment is based, and cannot be heard to challenge its sufficiency here.

V. Plaintiff has filed in this case a motion, to dismiss defendant’s appeal, because his abstract contains matters not existing in the record proper or exceptions. The abstract is very irregular, and, by the insertion of extraneons matters, seems to be intended to deceive the court. Perhaps we would have been justified in dismissing the appeal without considering the cause on its merits. However, as the cause has been fully briefed on the merits, we have investigated every issue which we may consider under the record proper, and as we are satisfied that the judgment should be affirmed we will not make any ruling on the motion to dismiss. The judgment of the trial court is affirmed.

Lamm, G. J., and Graves, Faris and Walker, JJ., concur; Bond, J., dissents; Woodson, J., not sitting.


author: WOO'D SON, J.

text:
    MARY C. PASH, Appellant, v. CITY OF ST. JOSEPH.
    In Banc,
    April 2, 1914.
    1. BENEFIT ASSESSMENTS: No Benefit District: Park Districts. A city cannot condemn land for park purposes in a particular park district, and assess benefits or damages caused by its establishment, when no such district in fact exists. The enforcement of a judgment assessing and levying special assessments on real property for the purpose of purchasing a public park, rendered in a suit begun long before the city council had divided the city into park districts, as required by statute, will be enjoined. Under the statutes governing the city of' St. Joseph the non-existence of a park district at the time a condemnation suit was brought to condemn land for park purposes and at the time notice was given of pan order for the impaneling of a jury to assess benefits and at the time the court' began to take evidence, renders void the verdict returned by the jury apportioning the benefits and the judgment confirming their verdict.
    2. -: -: -: Object of Notice. The object of a notice to property owners of an order of court impaneling a jury to apportion among lot owners the benefits arising from the condemnation of land for a park, is to permit them an opportunity to be heard and to present their rights and interests for the consideration of the jury; and that object would be totally defeated if there were when notice was given no park district, for they wou,ld not then know whether or not their lots would be embraced within the district for which they were to be taxed.
    Appeal from Buchanan Circuit Court. — Son. William D. Rusk, Judge.
    Reversed and remanded (with directions).

      Thomas B. Allen for appellant.
    (1) To render an assessment for a public improvement valid the various acts prescribed by the statute, must, in all essential particulars, be strictly performed; otherwise the assessment will be void. The rule is universal and applies to all statutes upon the subject of taxation, whether for local government or public revenue. No person can be held for a tax of any hind, except upon the production of assessment against him made in the manner provided by the taxing power. Sedgewick on Statutes, 319; B'ensley v. Water Co., 13 Cal. 306; Curron v. Shattuck, 24 Cal. 427; Stanford v. Worn, 27 Cal. 171; Nickloys v. Conkling, 20 N. E. 797; Smith v. D'avis, 30 Cal. 537; Taylor v. Dormer, 31 Cal. 482; In re Church Assessment, 56 N. Y. 396;. In re Blodgett, 52 How. Pr. 121; Sharp v. Spear, 4 Hill, 76; In re Jones, 78 Ala. 419; 1 Dillon, Mun. Corp., sec. 91, note. (2) The statutes require, as a prerequisite to the proceedings to condemn land for a park, that the territory of the city be divided into park districts, and the existence of such park districts is a jurisdictional fact in the proceeding. The non-existence of park districts at the time the condemnation suit was brought rendered the whole proceedings and the judgment void. Sec. 192, Laws 1909'; R. S. 1909, sec. 8725. (a) The language of said section (8725') is itself mandatory. Kansas City v. Mastín, 169 Mo. 93. (b) The context of said section (Sec. 192, Laws 1909: Sec. 8725' R. S. 1909) shows that its provisions are mandatory, prerequisite and essential to a proceeding’ to condemn land for a park Laws 1909-, secs. 19*3-96, 201, 207-10', 213-16, 218, 2201, 228. (c) A proceeding to condemn land for a park and provide payment for same by special assessment on real property, without the prior creation and existence of park districts, is void. This is pointedly and clearly evidenced by sec. 213, Laws 1909 (Sec. .8746, R. S. 1909), which provides that on acquisition and payment of the park site, the court shall adjudge the title to the land condemned shall be in the city to the use of park district. How can a judgment be rendered in a condemnation proceeding when there was no park district to receive and hold the beneficial use of the land taken for a park? (d) The fact of prior creation and existence of park districts is jurisdictional and must affirmatively appear in the special ordinance authorizing the condemnation proceeding which performs the office of the petition in the suit, (e) The admission by demurrer in this case that there were no park districts created or in existence at the institution of the condemnation proceedings is fatal to the proceeding and judgment rendered therein. (3) The power to establish a park in a city of the first class is predicated and dependent on the initiation of the park board and statutory procedure. The city cannot establish a park except upon recommendation and authority of the park board and according to the procedure set forth in the statute. Billings v. Chicago, 167 111. 337; Chicago v. Carpenter, 201 111. 402; Park Comps, v. Chicago, 152 111. 392. Where a charter provision provides that certain improvements shall be constructed on a certain plan, to be adopted by the city council, the city has no power or jurisdiction to make such improvement in disregard of such plan. In re School to Vacate Assessment, 46 N. Y. 179; In re Blodgett, 52 How. Pr. 120. (4) Special ordinance No. 5722, authorizing the condemnation suit is void and furnishes no legal foundation for the condemnation suit and conferred no jurisdiction on the court to entertain the suit. The section of the statutes upon which the above ordinance was based is Section 195', Laws 1900 (See. 8728, R. S. 1909). That section expressly provides for the fixing of benefit districts with reference to park districts and a failure to describe the benefit district with reference to park districts is fatal to the ordinance. As we have seen, the other charter provisions make it obligatory and compulsory on the city undertaking to condemn land for a park to announce and publish, in the ordinance, the exact and particular park district, or districts or parts thereof in which the park is to be located. A void ordinance cannot be made the basis of a condemnation suit. (5) The judgment in the condemnation proceeding is void. The ordinance authorizing the proceeding, which performs the office of a petition, is absolutely void and, therefore, the proceeding based thereon is void. At the institution of the suit, July 10, 1911, there was no allegation or mention of the existence of park districts and there were, in fact, no park districts in existence, as admitted by the demurrer, and negatived by the allegation that park districts were created on January 16,1912, six months after the filing of the suit and over two months after the condemnation proceeding had been submitted to the jury. It nowhere appears in the whole record of the condemnation proceeding that there were, at any time, any park districts.

      jFrank B. Fulkerson for respondent.
    (1) Appellant’s petition is fatally defective in the following particulars: (a) No sufficient reason is given why a court of equity should enjoin the judgment at law, rendered in this case. There is no allegation that appellant did not make the same defense below as here. Nor is there any allegation that she was prevented at the hearing of the original proceedings from making the defense that she attempts to make here. If for any reason Special Ordinance No. 5722 is void now it was void from the beginning and that defense was open to appellant at the trial in the circuit court. If she made the defense and the court ruled against her below her remedy was by appeal. McDonald v. McDonald, 242 Mo. 173; Renfro v. Renfro, '54 Mo. App. 429 ; Wyman v. Hardwick, 52 Mo. Ápp. 621. Appellant must have exhausted her possible legal remedies by appeal or writ of error before equity will hear her. Railroad v. Maddox, 92 Mo. 469; Stockton v. Ransom, 60 Mo. 535; Hotel Assn. v. Parker, 58 Mo. 327; 23 Cyc. 981, 993; 16 Am. & Eng. Ency. Law (2 Ed.), P1. 397; Ratliff v. Shield, 30 N. E. 30; Railroad v. Henderson, 18 S. W. 432 ; Warne v. Irwin, 53 N. E. 926; 1 Black on Judgments, sec. 393. If she failed to set up her defense, that failure on her part constitutes such negligence as now precludes her from setting it up in this action. Cantwell v. Johnson, 236 Mo. 575; Meska v. Cornwell, 145 Mo. App. 650; Vostine v. Bast, 41 M]o. 494; Perkins v. Railroad, 143 Mo. 513; Kelly v. Kress, 68 Cal. 2101; Barr v. Post, 80 Am. St. 680; Holinger v, Reeme, 46 Am. St. 402; Hanna v. Monow, 43 Ark. 107; Irrigation Co. v. Gildersleeve, 174 U. S. 603. The right to set aside this judgment is now res adjudicatev. Johnson v. Latta, 84 Mo. 142; Reilly v. Russell, 39 Mo. 152; Miller v. Bernecker, 46 Mo. 194; Dobbs v. Ins. Co., 72 Mo. 189; Hotel Assn, v. Parker, 58 Mo. 327. (b) Appellant does not plead fraud, accident or mistake as an excuse for her abandoning her defense at law and proceeding in a court of equity, and yet the authorities in this State are practically unanimous that some such allegation should be pleaded. State ex rel. v. Englemann, 86 Mo. 563; Murphy v. DeFrance, 101 Mo. 158; Murphy v. De France, 105 Mo. 65; láebe v. Liebe, 239' M!o. 158; Koehler v. Reed, 96 N. W. 380; Bankers’ Union v. Landis, 106 N. W. 973; Canada v. B'arksdale, 6 S. E. 10. (c) Appellant’s petition contains no allegation attempting to excuse or explain her action in failing to set up her defense, nor denying that the opportunity to do so was presented to her at the trial of the proceedings in the circuit court. Yet, this was necessary, in order that she should make her petition good in a court of equity. Carolus v. Koch, 72 Mo. 647; Patterson v. Yancey, 97 Mo. App. 681; Sanderson v. Voelcher, 51 Mo. App. 328; Risher v. Roush, 2 Mo. 95; Cadwaleder v. Atchison, 1 Mo. 659; Cantwell v. Johnson, 236 Mo. 575. (d) This action could be maintained only when it appears that appellant herself is free from negligence in making her defense. Renfro v. Renfro, 54 Mo. App. 429; Matson v. Field, 10' Mo. 100; Black on Judgments (2 Ed.), par. 387. (e) The appellant fails to allege that the judgment rendered herein is inequitable or unjust. Such an allegation is absolutely necessary before she can have any standing whatever in a court of equity to enjoin the enforcement of this judgment: Sauer v. City of Kansas, 69 Mo. 49; Stokes v. Karr, 11 Wis. 389; Thomas v. Weir, 59 Wis. IOS; Morris v. Mlorris, 76 G-a. 733. (f) Appellant fails to allege ignorance of the judgment rendered in this case. This she should have done, if she asked relief on that account. Eldred v. White, 36 Pac. 944; Henderson v. Hinckley, 17 How. 443. (g) The right of appeal was open to appellant, but no reason is assigned for not appealing. Sec. 8736, R. S. 1909. (h) If the circuit court had no jurisdiction in the condemnation case, and the judgment was void on that account, as appellant alleges, a “court of equity will not interfere to do a nugatory act. ’ ’ Railroad v. Reynolds, 89 Mo. 146; Ostmann v. Frey, 148 Mo. App. 284; Railroad v. Lowder, 138 Mo. 533. (2) Sec. 8733, R. S. 1909, is not in conflict with. secs. 3 and 4 of art. 10 of the Constitution of Missouri, as claimed by appellant. Corrigan v. Kansas City, 211 Mo. 608; Kansas City v. Bacon, 147 Mo. 259; Farrar v. St. Louis, 80 Mo. 379; St. Joseph v. Owen, 110 Mo. 445; Clinton v. Henry County, 115 Mo. 557; Water Co. v. Lamar, 128 Mo. 188.
   WOO'D SON, J.

This suit was instituted in the circuit court of Buchanan county, June 9, 1913', by the appellant, in her own behalf and that of several hundred other property-owners similarly situated, to enjoin the respondent, the city of St. Joseph, a city of the first class, from enforcing a judgment of said court, •rendered January 28, 1913, making or levying special assessments on real property situate therein for the purpose of purchasing a site for a public park in said city, and to cancel said judgment as a lien upon their real estate, and to remove the cloud cast thereby upon the titles to their said property.

A demurrer was filed to the petition, which was by the court sustained; and the plaintiff declining to plead further, judgment was rendered accordingly for' the defendant. From that judgment the plaintiff -duly appealed the cause to this court.

The material facts of the case, as stated in the -petition and admitted by the demurrer of the city to be true, are but few, and are as follows:

The city of St. Joseph is a city of the first class; :and on February 1, 1911, it duly enacted special ordinance numbered 5722, condemning certain land in said «city for the purposes of a public park, parkway, etc., ■which need not be set out.

That on July 10, 1911, said city filed in the circuit «court of said city a certified copy of said ordinance, as provided for by its charter. That on said day said .court made an order fixing August 14, 1911, the date for impaneling a jury to assess the benefits that would result to the property by virtue of the establishment of said park.

Notice of said order was duly given and proof thereof was duly filed on said last named date; and on the 21st of same month, said court made an order impaneling a jury to assess the benefits.

Thereafter, on November 6, 1911, and during the October term of said court, the jury was duly sworn and the cause was submitted to it and the taking of the evidence in the cause was begun.

Thereafter, on January 16,1912, the common council of said city duly, for the first time, enacted a special ordinance dividing the territory of said city into three park districts numbered 1, 2 and 3.

Thereafter, on August 12, 1912, .during the May term of said court, the jury returned its verdict into said court assessing said benefits, which was duly filed: and on January 28, 1913, during the January term thereof, said court, after hearing all objections and. exceptions to the verdict of the jury, overruled the same and rendered final judgment confirming the verdict of the jury assessing the benefits complained of.

And for the nullification of that judgment, as previously stated, this suit was instituted.

While counsel for each party present and discuss a number of propositions, yet it is not ' necessary to consider but one of them, because all others are predicated upon that one, and whichever way it is decided, they must follow.

From the statement of the case it is seen that the condemnation proceedings which resulted in assessing the special benefits against appellant’s property, were instituted about one year before the ordinance establishing the park districts was enacted. That is, ordinance No. 5722, condemning the property for park purposes, was enacted February 1, 1911, and was filed in the circuit court July 10th, same year, while the ordinance establishing the park district was not enacted until January 16, 1912, almost a year, as previously stated, after the condemnation proceedings had been instituted.

Upon that state of facts counsel for appellant contends that, “The non-existence of park districts at the time the condemnation suit was brought rendered the whole proceedings and the judgment null and void,” and consequently its validity may be challenged in this equitable proceeding.

The basis of that contention is predicated upon this insistence: “The statutes require, as a prerequisite to the proceedings to condemn land for a park, that the territory of the city be divided into park districts ; and that the existence of such park districts is a jurisdictional fact in the proceeding. ’ ’

The presentation of this question in this form requires the consideration of the laws and the ordinances of the city of St. Joseph.

The authority of the city to establish park districts is found in section 192, Laws 1909, p. 216, same as section 8725, Revised Statutes 1909', which reads as follows:

“Sec. 8725. May create park districts — Said board of park commissioners shall recommend to the city council a division of the territory within the city limits into park. districts, the number, names and description of said districts to be designated by said board, and to be established by ordinance, and thereafter, when the city limits may be extended or said board shall deem it advisable for any reason, said park districts may be increased or diminished in number, and the extent and area thereof may be increased or diminished by adding to or taking away from the territory thereof; but such changes shall be made only by ordinance, as recommended by said board.”

The language of this section is plain and unambiguous. It provides that the park commissioners shall recommend to the city council, park districts, etc., and that they shall be established by ordinance.

There can be no question but what this language is mandatory and must be obeyed by the commission and council, before the body, much less the life of the district can be created, and is in keeping with the general laws of nations, states, counties and municipalities which require that they shall be established, and the boundaries thereof fixed before they begin to exercise civil or political powers or they may be exercised for them.

In the case of Kansas City v. Mastin, 169 Mo. 80, l. c. 91, in discussing a similar charter provision,' this court said:

“The proposition that the charter of Kansas City violates sections 16 and 17 of article 9 of our Constitution, because it creates a third house of legislation in the board of park commissioners, wás negatived in the decision of this court in Kansas City v. Bacon, 147 Mo. l. c. 283.
“As there said, ‘it was entirely .competent to require, as a condition precedent, a prior recommendation of the park board. Such a provision confers no power on the board to legislate, but simply imposes a limitation upon the council. Until the council acts, no park can be established. [St. Louis v. Gleason, 93 Mo. 33.] ’ The city councils of said cities have not unlimited powers of legislation without regard to their charters, and it was never intended they should have. We see no reason for departing from the decision in Kansas City v. Bacon, on this point., [Kansas City v. Ward, 134 Mo. 172.] ”

To the same effect is American Tobacco Co. v. Missouri Pacific Ry. Co., 247 Mo. 374.

But the former case did not turn upon that point, because section 1 of article 7 of the charter of that city provided other means for creating park districts, and this court there held that either of those modes might be pursued by the city; and in so holding the court on page 93, said:

“But it is also contended that this proceeding must be adjudged void because there is no statement in the ordinance or record that the board of park commissioners had ever devised or adopted ‘a system of parks.’ As we understand this contention, it is that section 5> of article 10 of the charter confers upon the park board the power, and devolves upon it the duty, of devising and adopting a system of parks and boulevards, and unless there is an allegation in every condemnation proceeding that the board had first devised and adopted a system, there is no jurisdiction in the circuit court. .
“By section 1 of article 7 of the charter, general power is conferred upon the city to establish parks and boulevards. The language of section 5 of article 10 is, ‘Said board of park commissioners shall have power, and it shall be its duty, to devise and adopt a system of public parks, parkways, and boulevards, for the use of the city and its inhabitants, and to select and designate lands to be used and appropriated for such purposes within said city. But the power to condemn is not made dependent upon the adoption of a system of parks and the power of the city to acquire or condemn parkways or boulevards is not restricted by such a provision. There is no requirement that evidence of the adoption of such a system shall be preserved in any particular form, or filed in any public office. In the absence of some provision in the charter or the ordinance under which the proceedings are conducted, that such a step shall constitute a condition precedent to the acquisition of a parkway by condemnation, it is not a jurisdictional fact necessary to be stated in the petition or ordinance. The proceeding is required to be conducted in a court of general jurisdiction, and the power to condemn is given in. the charter and ordinance, and the proceeding is clearly referable to that power and it is not essential that it shall be stated anew in order to confer jurisdiction. The provision is easily distinguishable from those cases in which the courts have no power to proceed until it appears that the parties cannot agree, as in Ells v. Railroad, 51 Mo. 200, and Railroad v. Campbell, 62 Mo. 585. [Kansas City v. Smart, 128 Mo. l. c. 287, et seq.] The charter makes it obligatory that at least one park shall be established in each park district, without any reference to a plan of parks. Had appellants appeared at the trial, and proved, or offered to prove, that the park board had not devised a general system of parks, it would have constituted no defense whatever to the proceeding.”

Moreover, in that case there was nothing but the record proper before this court, and the only .question was whether or not it was necessary that the ordinance condemning the land should have recited the facts that the' board of park commissioners had devised, adopted and recommended to the city council a general park system, and that in pursuance thereof an ordinance had been enacted establishing the same, before the circuit court could acquire jurisdiction of the subject-matter.

This court in that case held that such recitals were not jurisdictional because this court would presume that all those preliminary steps had been properly taken before the ordinance condemning the land had been filed in the circuit court.

But in the case at bar the question is not one of procedure, as there. Here the park districts had not in fact been established at the time of the passage of the ordinance condemning the land or at the date it was first filed in the circuit court; but upon the contrary, it was not enacted until about one year thereafter, and that too, after the proceedings had been filed in the circuit court and after notice had been served and the jury had been selected, and the taking of evidence had materially progressed.

Clearly these were jurisdictional facts, though the recital of them may not have been necessary, as was held in the ease of Kansas City v. Bacon, supra. It would be absurd and nonsensical to say that a city can condemn land for park purposes in a particular park district, and assess benefits caused thereby, when no such district in fact existed.

Counsel for the respondent' does not seem to controvert that proposition, but seeks to escape from its effect by insisting that since the circuit court was a court of general jurisdiction, its judgment, unappealed from, confirming the verdict of the jury assessing the benefits, foreclosed all inquiry as to the establishment of the park districts mentioned.

I am unable to see the soundness of that insistence, for the reason that the question of the existence of the park districts was not before the court for adjudication. That court had no authority by law, decree or otherwise, to establish park districts in the city of St. Joseph; that was a matter resting solely within the province of the park commission and the city council, as shown'by section 8725; Revised Statutes 1909', previously quoted; consequently at the time of the institution of the condemnation proceeding, there existed no park districts within which the lands mentioned could be assessed for park purposes; nor did any such district exist at the time the notice was served that such proceedings had been instituted and that certain lands would be assessed for that purpose.

Nay, no such district had been created for five months or more after the jury had been impaneled to assess the benefits and some two and one-half months after the introduction of evidence had begun.

The very object of the notice was to give the property-owners an opportunity to be heard in the proceedings and present their rights and interests before the jury, which could not have been done, if they had no means of knowing whether or not their lands would be embraced in the park district for which they were sought to be taxed. [The St. Joseph Terminal Railway Co. v. The Hannibal and St. Joseph Railway Co., 94 Mo. 535, l c. 542; State ex rel. v. Riley, 203 Mo. 175, l. c. 191.]

It was held in the latter case, that one of the most, if not the most important step to be taken in this class of proceedings, is the establishment of the boundaries of the beneficial districts, and that great injury might be inflicted upon the property-owners if they were denied a fair and impartial trial at this stage of the proceeding. . .

And in State ex rel. v. Wiethaupt, 254 Mo. 319, it was held in a drainage district case a change of boundaries of the district after notice had been given rendered all of the proceeding therein up to that time null and void; then a fortiori should the proceedings in this case be held null and void where the boundaries of the park district, the. same as the benefit district, had never been established for a year or more after the giving of the notice.

If these cases, and many others of like import, correctly declare the law, then it must inevitably follow that the existence of the park district is a prerequisite to institution and prosecution of such proceedings, or we will be confronted with the proposition that the property-owners to be affected thereby would be de-r prived of their property without a hearing and without due process of law, under both the State and Federal Constitutions, since there is no pretense that an additional notice was given after the district had been formed.

In fact, so far as disclosed by the record in the condemnation proceedings no ordinance creating the park districts was ever enacted. That fact only appears from the allegations of the bill filed in this case, and the demurrer admits such ordinance was passed January 16,1912; but neither the record in this case nor in that shows that said ordinance was ever called to the attention of the circuit court during the pendency of the condemnation proceedings; and had it not been for the fact that counsel for appellant set out said ordinance in his printed argument in this court, we never would have known its provisions.

However, we have attached no importance to the provisions of that ordinance for two reasons; first, because it was not before the trial court in the condemnation proceedings; and, second, because counsel for respondent insists, which is true, that it is not properly before this court. But the fact that said ordinance establishing the districts was not enacted until a year after the condemnation proceedings were instituted is charged in the petition in this case and that fact is admitted by the demurrer which properly presents that fact to this court.

While it is regrettable that this state of affairs exists, yet we are compelled to write the law applicable to the facts as they exist, and not as to what we might wish them to be.

Entertaining these views of the case, we are of the opinion that the judgment should be reversed and the cause remanded to the circuit court with directions to grant a new trial in harmony with the views herein stated.

All concur; Faris, J., in result.