Behrle v. Behrle

• Decision Date: 27 November 1906
• Citation: 120 Mo. App. 677,97 S.W. 1005
• Parties: BEHRLE v. BEHRLE.
• Court: Missouri Court of Appeals

97 S.W. 1005

120 Mo. App. 677

BEHRLE v. BEHRLE.

St. Louis Court of Appeals. Missouri.

November 27, 1906.

Rehearing Denied December 11, 1906.

1. HUSBAND AND WIFE—SEPARATE MAINTENANCE — JURISDICTION OF COURT — SUIT MONEY.

Under Rev. St. 1899, § 4327, providing that, where a husband without good cause abandons his wife, and neglects to provide for her, the circuit court shall, on her petition, adjudge such award and maintenance to be provided for her and her children out of the husband's property as the circumstances shall require, the circuit court has jurisdiction to award suit money to a wife suing for separate maintenance, who is without means to prosecute her suit.

2. SAME—ALLOWANCE FOR APPEAL.

A wife suing for separate maintenance should not be allowed money out of her husband's means to prosecute an appeal from a judgment against her unless the trial court is satisfied the appeal was taken in good faith, and possessed some merit.

Appeal from St. Louis Circuit Court; C. Orrick Bishop, Judge.

Action by Minnie Behrle against Edward Behrle for separate maintenance. From an order granting plaintiff allowance for attorneys' fees and costs to prosecute appeal from judgment for defendant, defendant appeals. Affirmed.

H. H. Oberschelp, for appellant. F. X. Geraghty, for respondent.

BLAND, P. J.

Section 4327, c. 51, entitled "Married Women," Rev. St. 1899, provides: "When the husband, without good cause, shall abandon his wife, and refuse or neglect to maintain and provide for her, the circuit court, on her petition for that purpose, shall order and adjudge such support and maintenance to be provided and paid by the husband for the wife and her children, or any of them, by that marriage, out of his property, and for such time as the nature of the case and the circumstances of the parties shall require," etc. The plaintiff's action is bottomed on this section. Defendant, by his answer, denied that he abandoned his wife, and countercharged that she had abandoned him, without good cause, alleged indignities and such other misconduct on the part of his wife as would, in a proper suit, entitle him to a divorce, and prayed that he be divorced from his wife. The cause was heard by the circuit court and the following judgment rendered (omitting caption): "Now, at this day, this cause coming on for hearing, come the parties hereto by their respective attorneys and submit this cause to the court upon the pleadings, evidence, and proof adduced, and the court, after being sufficiently advised herein, doth find in favor of the defendant on the issues joined in the plaintiff's petition and the answer thereto, it is therefore considered and adjudged by the court that plaintiff take nothing by her suit in this behalf and that defendant go hence without day, and recover of plaintiff his costs and charges herein expended, and that execution issue therefor. It is further considered and adjudged by the court that the defendant's cross-bill be, and the same is, hereby dismissed for want of jurisdiction of the court." Plaintiff was granted an appeal from this judgment, and, on her motion, after hearing evidence in respect to the financial condition of the parties and their earning capacity, the court made the following order: "That defendant pay to plaintiff the sum of $50 as and for attorney's fees and to pay the costs of transcript, filing fee, and brief, said sum of $50 be paid on or before August 6, 1906." Defendant appealed from this order.

The jurisdiction and authority of the circuit court making the order is challenged by the defendant. At common law, the wife has the implied authority, as agent of her husband, to pledge his credit for the necessaries of life (Schouler's Domestic Relations, § 61) but she cannot sue her husband at common law for maintenance. 15 Am. & Eng. Ency. of Law (2d. Ed.) p. 814. The Kansas City Court of Appeals, in Long v. Long, 78 Mo. App. 32, held that the wife, in an action against her husband for separate maintenance, was entitled to alimony pendente lite, and that the statutory provisions in relation to alimony in suits for divorce do not militate against this right. Illinois has a statute which provides "that married women who, without their fault, now live, or hereafter may live, separate and apart from their husbands, may have their remedy in equity in their own names, respectively, against their husbands for a reasonable support and maintenance while they so live, or have so lived,...