Donaldson v. Donaldson

• Decision Date: 01 November 1919
• Docket Number: No. 13023.,13023.
• Citation: 215 S.W. 904
• Parties: DONALDSON v. DONALDSON.
• Court: Missouri Court of Appeals

215 S.W. 904

DONALDSON v. DONALDSON.

No. 13023.

Kansas City Court of Appeals. Missouri.

November Term, 1919.

Appeal from Circuit Court, Randolph County; A. H. Waller, Judge.

"Not to be officially published."

Action for divorce by Mason Donaldson against Harriett J. Donaldson. From an order allowing suit money and attorney's fees to defendant wife pending her appeal from divorce granted plaintiff, plaintiff appeals. Affirmed.

W. E. Whitecotton and Frank W. McAllister, both of Paris, for appellant.

J. H. Whitecotton, of Moberly, and Boyd & Barnes, of Paris, for respondent.

BLAND, J.

This is an appeal from an order allowing suit money and attorney's fees to defendant pending an appeal from a divorce granted to plaintiff. The amount of the allowance is not in dispute, but it is insisted that there is no reasonable probability that the Court of Appeals will reverse the divorce case on the grounds set up in the motion for a new trial in that case. Among the allegations of the motion for a new trial is that the court erred in overruling defendant's objection to the introduction of any testimony under the petition, for the reason that the petition failed to state a cause of action, and that the court erred in finding in favor of plaintiff, and that he was the injured and innocent party.

For us to say that there is no reasonable probability that this court would reverse the divorce case would require us to go into the merits of the principal controversy, the divorce, which is an independent proceeding standing on its own merits and one which we have no jurisdiction to review on this appeal. State ex rel. Gercke v. Seddon, 93 Mo. 520, 6 S. W. 342; Libbe v. Libbe, 166 Mo. App. 240, 148 S. W. 460; Creasey v. Creasey, 175 Mo. App. 237, 157 S. W. 862; Dowling v. Dowling, 181 Mo. App. 675, 164 S. W. 643.

It is contended that the trial court failed to find that this appeal was a meritorious one and taken in good faith. The fact that the trial court allowed suit money and attorney's fees pending an appeal is some evidence that it believed the appeal was taken in good faith. Defendant, however, insists that, because the court found that "this application for appeal is not without merit, the court doth sustain said motion," etc. (italics ours); that the court, on account of using the italicized words, failed to find that the appeal was not taken in good faith. We think that there is a presumption of good faith in favor of the taker of an appeal (rebuttable,...