Dwyer v. Dwyer

Decision Date02 June 1887
Citation26 Mo.App. 647
PartiesMARY E. DWYER, Appellant, v. WILLIAM DWYER, Respondent.
CourtMissouri Court of Appeals

APPEAL from the St. Louis Circuit Court, DANIEL DILLON, Judge.

Affirmed.

ALEX. J. P. GARESCHÉ , and E. A. B. GARESCHÉ , for the appellant: The defendant being guilty of conduct such as to constitute him a vagrant within the meaning of the law concerning vagrants, by his utter neglect to contribute to the support of his wife, though possessed of ample means to do so, is a valid ground for divorce. Rev. Stat., sects 1568, 2174; Whaley v. Whaley, 50 Mo. 581; The State v. Green, 87 Mo. 587; McVey v. McVey, 51 Mo. 420.

BOYLE ADAMS & MCKEIGHAN, for the respondent.

OPINION

THOMPSON J.

This is an action for divorce and alimony, brought by Mary E. Dwyer against her husband, William Dwyer. The matters of difference which exist between this unfortunate couple now come before this court for the third time. In the first case Mrs. Dwyer brought an action against her husband for a divorce, shortly after quitting his mansion and separating from him, on the ground, as she alleged, of indignities offered by him to her such as rendered her condition intolerable. It was held by this court, affirming the judgment of the circuit court, that her evidence failed to exhibit such a state of facts as entitled her to a divorce under the statute. Dwyer v. Dwyer, 2 Mo.App. 17. The spouses thereafter continued to live apart for about ten years, holding no communication with each other--the wife supporting herself by her own exertions, and the husband contributing nothing to her support--until, in 1883, the husband brought an action for divorce against the wife on the ground of abandonment. In this action the wife filed a cross-petition, in which she claimed a divorce from the husband, on the ground that he had deserted her, and neglected and refused to provide for her support. In that suit such proceedings were had that this court, reversing the judgment of the circuit court, held that neither party was entitled to a divorce from the other. Dwyer v. Dwyer, 16 Mo.App. 422.

The present petition sets up the same matters which were adjudicated against Mrs. Dwyer by this court in the two former actions, and sets up the additional ground that the defendant " has been guilty of such conduct, both then and since [meaning both at the time of their living together in 1873 and since], and up to and inclusive of the date of the filing of this petition, as to constitute him a vagrant within the meaning of the law respecting vagrants."

I. At the trial the plaintiff gave evidence tending to show the treatment by her husband toward herself while she lived with him in 1873, and the reasons which impelled her to quit his place of abode; and she admitted that she had testified to substantially the same facts in the former actions. The defendant put in evidence, against the objection of the plaintiff, the record of the court in the former actions, under that part of his answer which pleaded a former adjudication. There was no error in this, and it is not necessary to enlarge upon so plain a proposition. The circuit court could not, and neither can we, re-judge the judgments of this court in those cases. Those judgments, whether well or ill-founded, are, upon elementary principles, conclusive upon that court, upon this court, and upon every other court.

The only remaining question is, whether the plaintiff has shown the defendant to have been guilty of such conduct as to constitute him a vagrant within the meaning of the statute respecting vagrants. If she has shown this, she is entitled to a divorce, and, incidentally, to alimony, under the provisions of section 2174, and other sections of chapter 28, of the Revised Statutes.

II. At the outset there is a question whether the charge of vagrancy was pleaded with sufficient definiteness to amount to a statement of a cause of action upon that ground. Undoubtedly, the petition is not sufficiently specific. It was held by the supreme court, in Bowers v. Bowers (19 Mo. 351), that a petition which merely charged, in general terms, that the defendant had offered to the plaintiff indignities which rendered her condition intolerable was not sufficiently specific under the statute. But it was not held that such a petition would not support a judgment, where there had been a trial without any objection to its insufficiency. Undoubtedly, the defendant in the present case would have been entitled to a rule on the plaintiff to make her petition in this respect more definite and certain; but a majority of the court are of opinion that, after a trial and judgment, without any objection to the sufficiency of the petition upon this ground, and in the absence of anything in the record indicating that the defendant has been thereby prejudiced, we ought not to affirm the judgment, irrespective of the merits as shown by the evidence, merely because of the indefiniteness of the statement in the petition. While we agree with the doctrine that waiver does not apply in divorce proceedings, since the state is, in a sense, a party to every such cause, and the law prohibits decrees by consent or collusion, yet the history of this litigation and what appears on the face of the present record clearly show that a rule which would require explicit definiteness of statement on the part of the plaintiff, whether the defendant should object or not, would have no application to such a case as this. On this point Judge Rombauer deems it unnecessary to express an opinion.

Judge Lewis is, however, of opinion that the plaintiff ought not to be precluded from having the merits of this charge considered by this court because of the indefiniteness of the petition in setting it out, for the further reason, that, at the commencement of the trial, the plaintiff asked leave to amend her petition, and substitute after the word " petition," in line eleven thereof, the words, " and since the filing of this petition, by his failure and refusal to support the plaintiff; " which leave to amend the court refused. In order to understand the effect of this amendment, it should be stated that the petition, if so amended, would have run as follows: " And has been guilty of such conduct, both then and since, and up to and inclusive of the day of the filing of this petition, and since the filing of this petition, by his failure and refusal to support the plaintiff, as to constitute him a vagrant within the meaning of the law respecting vagrants." Judge Rombauer and I do not concur in this view of Judge Lewis. We are of the opinion that this amendment was properly rejected, for the reason, if for no other, that it contained an element which could not be injected into the case, namely, the conduct of the defendant since the filing of the petition. The general rule is, that the plaintiff can only recover upon the state of facts existing at the time of the commencement of his action, and that if he had not a cause of action at the time when his action was brought, he can not amend by charging matters subsequently arising, but if he wishes to avail himself of such matters, he must dismiss and bring a new action.

Upon the question, whether the evidence adduced on behalf of the plaintiff shows that the defendant was a vagrant within the meaning of the law relating to vagrancy, the members of the court are likewise unable to agree. Judge Lewis and I are of opinion that the statute (Rev. Stat., sect. 2174), in using the words, " within the meaning of the law respecting vagrants," has reference to any and all of the provisions of the Revised Statutes respecting vagrants, not only to the provisions of chapter 166, but, also, to the provisions of section 1568, which is found in the criminal code; but Judge Rombauer is of opinion that the statute refers to the provisions of chapter 166, merely. Judge Lewis is further of opinion that the evidence in this case brings the defendant within the clause of section 1568, which describes a vagrant as " every able-bodied man who shall neglect or refuse to provide for the support of his family" ; but Judge Rombauer and I do not share in this opinion, and as we two differ with each other in opinion upon this question, I will merely say for myself that, while I am of opinion that, in order to entitle the wife to divorce, on the ground that her husband is a vagrant within the meaning of section 1568, Revised Statutes, the evidence must be such as would support a conviction for vagrancy in a criminal prosecution under that section, I do not think that the evidence in this case would support such a conviction. It does not appear, by any competent evidence, that Mr. Dwyer has ever neglected, or refused, to provide for the support of his family. I am of opinion that the wife does not cease to be a member of her husband's family from the mere circumstance that she may reside apart from him. I have no doubt that the mere circumstance of her so residing, does not entitle him to refuse to support her. But I am of opinion that the statute has no application to the case of a husband who neglects, or refuses, to support his wife who wilfully and wrongfully lives apart from him, and who wilfully and wrongfully refuses to return to him and perform the duties of wife. If this was Mrs. Dwyer's position, I should say that the statute could have no application to this case, although she may have been the sole member of her husband's family.

I am also of opinion, and on this point I understand Judge Rombauer to concur with me, that the criminal statute is leveled against vagabond husbands, who, having the ability to do so, neglect and refuse to support their families generally, and that it does not apply to a case of a husband who merely...

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