Allfree v. Allfree

• Decision Date: 05 January 1914
• Citation: 162 S.W. 650,175 Mo. App. 344
• Parties: ALLFREE v. ALLFREE.
• Court: Missouri Court of Appeals

162 S.W. 650

175 Mo. App. 344

ALLFREE v. ALLFREE.

Kansas City Court of Appeals. Missouri.

January 5, 1914.

1. DIVORCE (§ 184) — APPEAL — REVIEW OF FINDINGS OF FACT.

In a suit for divorce the appellate court is not bound by the findings of fact of the trial court, and must examine the evidence, determining for itself whether a proper conclusion has been reached, but will defer much to the advantages had by the trial court in the hearing of the witnesses and recognizing the atmosphere of the case.

2. DIVORCE (§ 6)—ALLOWANCE OF DIVORCE.

Where the evidence shows that a party is entitled to divorce, the courts have no discretion to refuse it.

3. DIVORCE (§ 184)—REVIEW—HARMLESS ERROR.

In a suit for divorce, the erroneous action of the trial court in overruling plaintiff's motion to strike out portions of defendant's cross-bill will be considered harmless, where both the petition and cross-bill were dismissed and both parties were denied relief.

4. DIVORCE (§ 132) — ACTIONS — EVIDENCE — SUFFICIENCY.

In a suit by a wife for divorce, evidence held insufficient to establish the indignities of which she complained.

5. APPEAL AND ERROR (§ 692)—RECORD—SUFFICIENCY.

Complaints that the trial court erred in excluding evidence cannot be sustained on appeal, where the record does not show what the excluded testimony was, or what it tended to prove.

Appeal from Circuit Court, Bates County; C. A. Calvird, Judge.

Suit for divorce by Lula A. Allfree against Samuel H. Allfree. From a decree dismissing both the petition and defendant's cross-bill, plaintiff appeals. Affirmed.

J. F. Smith, of Butler, and A. F. Evans, of Kansas City, for appellant. Smith & Chastain, of Butler, for respondent.

TRIMBLE, J.

A suit for divorce by a wife on the ground of indignities. The husband denied the allegations of the petition and filed a cross-bill. A trial was had, and the circuit court refused to grant a divorce to either party and dismissed both the petition and the cross-bill. The defendant abided the result; the plaintiff appealed. She asks this court to review the evidence and reverse the judgment because the evidence shows that she is entitled to a divorce under the law.

It is true that in a proceeding for divorce the appellate court is not bound by the findings of the trial court, but can, and must, examine the evidence and decide for itself whether the proper conclusion has been reached. Torlotting v. Torlotting, 82 Mo. App. 192; Barth v. Barth, 168 Mo. App. 423, 151 S. W. 769.

It is also true that where the evidence shows a party is entitled to a divorce, the courts have no power or discretion to refuse it. Lynch v. Lynch, 87 Mo. App. 32; Hamberg v. Hamberg, 147 Mo. App. 591, 126 S. W. 808. But the question is, Does the evidence in this case establish clearly plaintiff's right to a divorce?

Before taking up this question it may be well to dispose of a complaint made by plaintiff as to the action of the court in overruling her motion to strike out portions of defendant's cross-bill. As the court dismissed the cross-bill, thereby finding against defendant on the pleading attacked, it is not seen what ground of complaint can accrue to plaintiff even if the court's action on the question was erroneous. It is not seen in what way the court's mind was diverted from the issues by the matter in the cross-bill which plaintiff sought to have stricken out. As the record is presented to us, it is somewhat uncertain just what portions were asked to be stricken out, but by a painstaking investigation it is believed we have ascertained and marked nearly all of such portions. As thus ascertained we find some of them relevant to the issue presented by plaintiff's petition and her evidence adduced in support thereof. If other portions contain irrelevant matter, the testimony in support thereof was gone into on both sides without objection, and the testimony on such alleged irrelevant matter is not such as to affect the question of plaintiff's right to a divorce either way. The action of the court in overruling plaintiff's motion to strike out, whether erroneous or proper, cannot affect in any way the disposition to be made of the case.

It is unnecessary to go into a detailed statement of the evidence. Plaintiff and defendant were married January 16, 1906, and lived together on plaintiff's farm until August, 1912, when without warning or notice of any kind, she brought suit for divorce, and after the papers had been served upon her husband, she directed him to get his mortgaged property away from there. Defendant obeyed the direction and, taking the broad hint implied, took himself away also.

The charge in the petition is that defendant was an habitual drunkard; that he spent his time in idleness, and failed to properly support pla...