State v. Rombauer

• Citation: 99 Mo. 216,12 S.W. 661
• Parties: STATE ex rel. DAWSON v. ROMBAUER et al., Judges.
• Decision Date: 21 December 1889
• Court: United States State Supreme Court of Missouri

12 S.W. 661

99 Mo. 216

STATE ex rel. DAWSON v. ROMBAUER et al., Judges.

Supreme Court of Missouri.

December 21, 1889.

DIVORCE — ALIMONY — PENDING APPEAL — WRITS OF PROHIBITION.

1. It being within the power of the circuit court, under Rev. St. Mo. 1879, § 2179, to decree alimony pendente lite, the court of appeals, on appeal, may determine the time during which such order shall require payment to be made, and direct all arrears to be paid before entry of judgment in favor of the payor, though no exceptions were taken to such order.

2. Const. Mo. art. 6, § 3, providing that the supreme court shall have control over the courts of appeal by mandamus, prohibition, and certiorari, only authorizes the writ of prohibition when the court of appeals has no jurisdiction over the matter which it is proceeding to determine.

Petition for writ of prohibition.

Martin, Laughlin & Kern, for petitioner. D. H. McIntyre and Zach J. Mitchell, for respondents.

BLACK, J.

This is an original proceeding in this court, by prohibition against the judges of the St. Louis court of appeals, to restrain them from making a threatened order or judgment in a cause now pending in that court on appeal from the circuit court of St. Louis county, wherein the present relator, James Dawson, is plaintiff and Eva Dawson is defendant and the appellant. The history of that case, so far as important to a disposition of this one, is this: James Dawson commenced the suit, which was for divorce, in February, 1885. The circuit court, on the 1st of June, 1885, made the following order: "It is ordered that the plaintiff pay to defendant, for her separate maintenance of self and child during the pendency of this suit, the sum of $50 per month, on the first day of each and every month, commencing on the first day of June, 1885; also, the sum of $100, to and for the use of counsel." Thereafter the defendant made affidavit of prejudice against the regular judge, and the parties agreed upon a special judge, who heard the evidence, and in December, 1885, rendered judgment dismissing the petition and cross-bill. The plaintiff appealed; and on the 11th May, 1886, the St. Louis court of appeals reversed the judgment, and directed the circuit court to enter up a decree of divorce in favor of the plaintiff; adding, however, these words: "The plaintiff first paying to the defendant, or into court for her use, all arrearages, if any, in the alimony heretofore awarded to her by the trial court." No exceptions had been taken to the order of the circuit court allowing alimony pendente lite, but a suggestion had been made in the court of appeals that plaintiff was two months in arrear in the payment of alimony at the date of the judgment of reversal. The regular judge of the circuit court, on the presentation of the mandate of the court of appeals, entered up a judgment of divorce in favor of the plaintiff; and the defendant appealed. This judgment of the circuit court was reversed for the sole reason that it should have been entered by the special judge. This second judgment of reversal contained the same directions to the trial court as did the former one. On the 22d June, 1888, the special judge heard the cause, found that the alimony had been paid, as he construed the former order, and gave judgment for divorce in favor of the plaintiff. The defendant again appealed to the court of appeals. It appears that the plaintiff paid the $50 per month, not only to the date of the first judgment of the circuit court dismissing the petition and cross-bill, but to the 11th May, 1886, the date at which the court of appeals rendered the first judgment of reversal, and by which it was held that the plaintiff was entitled to a decree of divorce: but he made no further payments of alimony. The sole question on the third appeal was whether he should have been required to pay the alimony pendente lite, down to the date of the last judgment entered by the special judge, on the 22d June, 1888. The court of appeals reached the conclusion, after two arguments, that he should, and entered a judgment requiring the plaintiff to pay into that court alimony pendente lite, to and including the month of June, 1888; otherwise, the decree of the trial court would be reversed, and the case remanded, with directions to enter a decree of divorce in favor of plaintiff, but with the addition that plaintiff be adjudged to pay the defendant the arrears of alimony above named. The relator contends — First, that the order of the circuit court for the payment of alimony pendente lite terminated with the judgment of the circuit court, made on 23d December, 1885, dismissing the petition and cross-bill, and did not contemplate the payment of such alimony pending the appeal in the court of appeals; second, that under no construction can it be held to extend beyond 11th May, 1886, at which date the court of appeals adjudged the defendant the guilty party, and the plaintiff entitled to a decree; third, that the court of appeals is without jurisdiction to decree alimony pendente lite, and, under the pretense of construing the order of the circuit court, has usurped jurisdiction over the matter of alimony, and, unless restrained, will carry into effect its last judgment, and make the payment of $1,150 a condition to a decree of divorce.

Our jurisdiction to issue the writ of prohibition is invoked by authority of section 3, art. 6, of the constitution; but, aside from that, section 8 of the amendment of 1884 provides that "the supreme court shall have superintending control over the courts of appeal by mandamus, prohibition, and certiorari." Our...