McIntyre v. McIntyre

• Citation: 24 Mo.App. 166
• Parties: ELIZABETH R. MCINTYRE, Defendant in Error, v. GEORGE MCINTYRE, Plaintiff in Error.
• Decision Date: 10 January 1887
• Court: Court of Appeals of Kansas

24 Mo.App. 166

ELIZABETH R. MCINTYRE, Defendant in Error, v. GEORGE MCINTYRE, Plaintiff in Error.

Court of Appeals of Missouri, Kansas City.

January 10, 1887

ERROR to Holt Circuit Court, HON. HENRY S. KELLEY, Judge.

Reversed and remanded with directions.

The case is stated in the opinion.

J. C FISHER, with DANIEL ZOOK, for the appellant.

I. The circuit court had no jurisdiction under the decision of the Supreme Court to enter any judgment, except to eliminate that part allowing alimony to the wife, and the judgment in this case is absolutely void. Chouteau v. Allen, 74 Mo 56; Hurck v. Erskine, 50 Mo. 117; Shroyer v Nickel, 67 Mo. 589; sects. 3776, 3779, Revised Statutes.

II. A court cannot at any subsequent term change its judgment to one which it neither rendered nor intended to render. Ross v. Ross, 83 Mo. 100.

No brief for the respondent.

ELLISON J.

Plaintiff sued defendant in the Holt county circuit court for divorce, alleging cruelty, indignities, etc., and praying for alimony as well as the custody of an infant child. The defendant answered by way of cross-bill. On trial, the decree was given for defendant on his cross-bill, but the court gave judgment for alimony in favor of plaintiff. The defendant took the case to the Supreme Court in order to reverse that part of the decree relating to the alimony allowed plaintiff, contending that, as he had obtained the divorce for the fault of the plaintiff, there was no authority of law for the judgment of alimony against him. In this view he was sustained by the Supreme Court. 80 Mo. 470. That court said, " This writ of error is prosecuted for the purpose of reversing so much of said decree as adjudges alimony in favor of plaintiff." The opinion proceeds to characterise the decree allowing alimony to the plaintiff, when the divorce was granted for plaintiff's fault, as extraordinary and without the warrant of law. The opinion closed by stating that, " The court, having adjudged the divorce in favor of the defendant, had no jurisdiction to render a decree for alimony in favor of plaintiff. This error is palpable, and may be corrected on writ of error. Accordingly it is ordered that the decree be reversed and the cause remanded, with directions to the court below to enter judgment in accordance with this opinion." Under this state of the case the circuit court entered the following judgment, on which defendant brings the case here by writ of error:

" Now, on this thirteenth day of May, 1885, it being the fifteenth day of the April term of said court, the said cause coming on for hearing on the motion of the plaintiff and for disposition on the mandate of the Supreme Court, and the court having heard the evidence and the decree of this court heretofore rendered, awarding one thousand dollars in gross to plaintiff, having been set aside and reversed by the said Supreme Court; this court now here modifies said former decree, as follows: And it is ordered, adjudged and decreed that

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