Amerland v. Amerland

• Decision Date: 02 February 1915
• Docket Number: No. 13763.,13763.
• Citation: 173 S.W. 104
• Parties: AMERLAND v. AMERLAND.
• Court: Missouri Court of Appeals

173 S.W. 104

AMERLAND v. AMERLAND.

No. 13763.

St. Louis Court of Appeals. Missouri.

February 2, 1915.

Rehearing Denied February 16, 1915.

Appeal from Circuit Court, St. Charles County; B. H. Dyer, Judge.

Action by Louisa Amerland against Herman Amerland. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions to dismiss the action.

Theodore C. Bruere, of St. Charles, for appellant. Wm. Waye, Jr., and C. W. Wilson, both of St. Charles, for respondent.

REYNOLDS, P. J.

The plaintiff, as appears by the abstract of the record filed by appellant, who was defendant below, commenced this action in the circuit court of St. Charles county, on the 6th day of October, 1911, upon which day summons issued and was served on defendant. On the 24th day of June, 1912, plaintiff filed an amended petition. In this amended petition plaintiff states:

"That on the 30th day of April, 1906, in the county of St. Charles, in the state of Missouri, she was lawfully married to defendant and that she continued to live with defendant as his wife from and after the day and year aforesaid until the 25th day of May, 1911."

Following this with the usual averments that plaintiff, during the time aforesaid, had faithfully demeaned herself and discharged her duties as the wife of defendant, it is averred that defendant, wholly disregarding his duties as the husband of plaintiff, offered to plaintiff continuously since the date of their marriage such indignities as to render her condition intolerable. The alleged indignities are then set out, it being charged that by these indignities defendant had rendered the condition of plaintiff intolerable. Averring that she is without means she prays for a divorce from the marriage contracted as aforesaid, and that she be adjudged support and alimony out of the property of defendant, praying for such orders, judgments and decrees as shall be proper in the premises.

For another cause of action it is averred that defendant is impotent, has been such through all the time of their marriage and was so before the marriage; that the disability is permanent and incurable and that plaintiff was ignorant of this at the time of the marriage. For this also she prays divorce, also praying restoration of her maiden name and an allowance for support and alimony.

In the affidavit to this petition it is set out that the facts stated are true according to the best knowledge and belief of plaintiff; that the complaint is not made out of levity or collusion, fear or restraint between plaintiff and defendant for the mere purpose of being separated from each other but in sincerity and truth for the causes mentioned in the petition.

On June 25, 1912, defendant appeared and filed his answer to the amended petition and also his cross bill. The answer, admitting the marriage as alleged, denies each and every other allegation in the petition. In the cross bill defendant sets up that he is the injured and innocent party; that he had faithfully demeaned himself at all times during the marriage and that on the 25th of May, 1911, plaintiff, without reasonable cause, absented herself from defendant for the space of over one year. Then follows this:

"Defendant further states that he is now a resident of St. Charles county, state of Missouri, and has resided in said county and state one whole year next before the filing of this petition. Wherefore he prays for a divorce from the plaintiff and for such further orders and judgments touching the premises as to the courts will seem meet and just."

Following this is the statutory affidavit.

A reply was filed to the answer and cross bill, denying each and every allegation in the answer and cross bill.

At the conclusion of the trial the court, finding for plaintiff, entered up a decree dissolving the marriage. The decree sets out that the court found:

"That the charges in the plaintiff's amended petition set forth are just and true and that the plaintiff is the innocent and injured party and is justly entitled to be divorced from the bonds of matrimony heretofore contracted with the defendant upon the grounds and for the reasons set forth in both counts of her amended petition herein filed."

Adjudging the divorce in favor of plaintiff, the restoration of her maiden name, Louisa Hackman, and that defendant forthwith pay to plaintiff, and that plaintiff have and recover of defendant, the sum of $150 for attorney's fees and expense of prosecuting this action in the circuit court and that she have execution therefor, the decree further awarded alimony in gross, ordering defendant to pay plaintiff $3,400 as alimony in gross and in full of her marital rights in his goods, effects and property, both real and personal, and that she have execution therefor according to law. The court found the issues in favor of plaintiff upon the cross bill filed by defendant and entered up judgment on that against the defendant, awarding plaintiff costs. It was further ordered and adjudged, that as alimony pendente lite, the defendant pay to plaintiff the sum of $25 per month, payable the 15th day of September, 1912, and every month thereafter until the final disposition of this suit, whether that disposition is delayed or postponed by appeal or otherwise.

Filing a motion for new trial and excepting to the action of the court in overruling it, defendant duly perfected his appeal to this court.

This judgment is attacked here by appellant on five grounds: First, that this court cannot look beyond the amended petition in determining the question as to whether or not that amended petition states a cause of action, the filing of the amended petition, it is claimed, being an abandonment of the original petition. Second, that the omission of the allegation as to residence in the amended petition is not cured by the fact that it appears by the evidence that plaintiff resided in St. Charles county, Missouri, continuously since the marriage and to the date of the trial. Third, the omission of the averment in the amended petition as to residence is not cured by the allegations contained in defendant's answer and cross bill. The fourth and fifth assignments are to error in the admission of incompetent evidence over the objection of defendant, and that the evidence is insufficient to support the decree for divorce.

Turning to the first and second assignments, which practically raise the same point, we are obliged to hold, on authority, that the decree in this case must stand or fall according to the allegations contained in the amended petition, and that it cannot be helped out by the original petition, which was abandoned. That has been the rule of decision in this state for many years, commencing with Basye v. Ambrose, 28 Mo. 39. It was so held in that case, construing what is now section 1857 of our Practice Act, which provides:

"In every petition, answer or reply, amendatory or supplemental, the party shall set forth in one entire pleading all matters which, by the rules of pleading, may be set forth in such pleading, and which may be necessary to the proper determination of the action or defense."

The rule announced in Basye v. Ambrose was followed in Young, Adm'r, v. Woolfolk, 33 Mo. 110; Ticknor v. Voorhies, 46 Mo. 110, and in Walker v. Wabash R. R. Co., 193 Mo. 453, 92 S. W. 83.

Our divorce statute (section 2373) provides in express terms:

"No person shall be entitled to a divorce from the bonds of matrimony who has not resided within the state one whole year next before filing of the petition, unless the offense or injury complained of was committed within this state, or whilst one or both of the parties resided within this state."

Beyond question, neither of these necessary allegations are in this amended petition.

In Pate v. Pate, 6 Mo. App. 49, it is held that jurisdiction in a divorce suit must appear from the whole record; that the libel must allege every fact, the existence of which the statute makes necessary to the granting of the divorce, and when this is not substantially done the bill should be dismissed, and that where the jurisdictional fact does not appear on the face of the petition, the court can take no valid step.

It is true that in Werz v. Werz, 11 Mo. App. 26, and in Smith v. Smith, 48 Mo. App. 612, it was held that it was not essential to the validity of a decree of divorce, that all the jurisdictional facts should appear from plaintiff's petition but it is sufficient if the jurisdiction appears from the entire record. But it is to be remembered that in each of those cases the decree of divorce was attacked in an action brought after the rendition of the decree to set the decree aside. It is expressly stated in the Smith Case, 48 Mo. App. loc. cit. 615, that the decree which had been entered,

"among other things, recites that the plaintiff is and has been for at least one whole year last past previous to the commencement of this action a resident of the state of Missouri."

The rule announced in Pate v. Pate, supra, is referred to and the decision in that case criticized, not however as applicable to the facts in that case in which the decree of divorce was attacked in the cause in which it had been rendered, but on the ground that the rule there could not be invoked for the purpose of impeaching the decree in a collateral proceeding. This is distinctly recognized by the Kansas City Court of Appeals in Stansbury v. Stansbury, 118 Mo. App. 427, 94 S. W. 566. Judge Johnson, who wrote that opinion, calling attention to the fact that Judge Rombauer, in his decision in the Smith Case, supra, had cited with approval Hansford v. Hansford, 34 Mo. App. 262, loc. cit. 270. In that case it is said by Judge Rombauer, who delivered the opinion:

"Residence within the state for a year next preceding the institution of the suit, is in all but the excepted cases a jurisdictional fact which must be averred and proved, and a decree rendered upon a petition...