Gilsey v. Gilsey

• Decision Date: 28 January 1918
• Docket Number: No. 12749.,12749.
• Parties: GILSEY v. GILSEY.
• Court: Missouri Court of Appeals

201 S.W. 588

198 Mo. App. 505

GILSEY v. GILSEY.

No. 12749.

Kansas City Court of Appeals. Missouri.

January 28, 1918.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

Action by Anna Gilsey against Max Gilsey. From judgment for defendant, plaintiff appeals. Affirmed.

See, also, 195 Mo. App. 407, 193 S. W. 858.

J. M. Johnson, Frank Yeoman, and J. D. Hill, all of Kansas City, for appellant. Paul R. Stinson, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff and defendant were married in October, 1905, by commonlaw contract. Finding that they could not live together, they on the 5th of March, 1914 entered into an agreement of separation and settlement, wherein it was recited that as it was "impossible for them to continue to live together as man and wife," it was agreed therein they would separate and that plaintiff would "accept the sum of $5,000 in full settlement of all property rights and dower interest in and to all sums of money and interests in any and all personal properties, real estate, stocks, and bonds that may be due" from defendant to plaintiff "by law or contract, is hereby settled in full."

On the 23d of December 1914, plaintiff filed the present action for divorce and alimony. Defendant made answer in which he pleaded the contract, claiming that he had complied therewith and that he was thereby released from any obligation for alimony. Plaintiff filed a reply to such answer in which she charged that the contract was procured from her by fraud and duress and that she was therefore not bound by its terms; but she did not plead a return, or offer to return, what she received from defendant.

The trial court granted plaintiff a decree of divorce in which it allowed plaintiff $3,000 alimony and $200 attorney's fees, and refused to consider the contract aforesaid, on the ground that defendant had not properly pleaded it, and held that even if the contract were properly pleaded, it did not relieve defendant from his obligation to pay alimony.

Defendant acquiesced in the decree for divorce, but appealed from the allowance of alimony and attorney's fees, on the ground that the contract should be considered and held to bar alimony. The case will be found reported in 195 Mo. App. 407, 193 S. W. 858.

We there held, in an opinion by Bland, J., that, considering that the reply to defendant's answer took issue on the contract and pleaded that it was procured by fraud and duress, it was not correct to say that it was out of the case as not being properly pleaded. It was further held, contrary to the view of the trial court, that, if the contract had not been procured by fraud and duress, it was a bar to alimony. The judgment was therefore reversed and the cause remanded that the issue made on the procurement of the contract might be tried, and if found to have been fraudulently obtained, alimony was to be allowed, but if there had been no fraud or duress, then alimony was barred.

The case came on again in the trial court when defendant filed a motion for judgment on the pleadings; that is, for judgment against alimony and attorney's fees. The motion was sustained on the ground that plaintiff had not pleaded in the reply that she had returned, or offered to return, the $5,000 received under the contract she sought to repudiate for fraud. Plaintiff thereupon appealed to this court.

Plaintiff has assigned two principal grounds for reversal of the judgment:

First. That this court in reversing the judgment and remanding the cause ordered a new trial on the issue of fraud and duress in procuring the contract, and therefore the trial court had no other power or jurisdiction and should not have entertained defendant's motion for judgment further than to have overruled it.

Second. That if the contract was procured by defendant through fraud and duress, plaintiff was not required to tender back the sums received under the contract, for the reason that a "fiduciary relationship" existed between the parties. And that it is not necessary to tender back the amount received under a contract where the party committing the fraud owed the other party more than the amount which could be tendered. And that the rule requiring tender does not apply to equity cases, where the prayer offers to do equity, or submit to such orders as the court might make.

And, lastly, that the question of tender had nothing to do with attorney's fees, an issue said to be left in the case regardless of alimony.

It is true, as stated by plaintiff, that where an appellate court reverses a judgment and remands the cause, with specific directions, those directions must be complied with, and, if such directions dispose of the case, that ends the matter in controversy. Rees v. McDaniel, 131 Mo. 681, 33 S. W. 178. But we think the opinion on the `hearing when the case was here before does not give any directions. It is true that we referred to another trial on the question of fraud by merely assuming it would be necessary, in the state of the case as made by our opinion, to have another trial. But it was not intended, nor did we cut off any right which the defendant might have arising out of the state of the pleadings. Nothing of that nature was suggested.

Nor do we think that there was any such "fiduciary" relation existing between these parties at the date of the contract that would relieve either, in an action at law, of the performance of any duty which is requisite to the right to assert a cause of action. It was said by the Court of Errors and Appeals of New Jersey in deciding a case involving an antenuptial contract that:

The "husband, by his will, devised to the trustee named in the marriage settlement, and for her benefit, the sum of $5,000 provided in that instrument. Of that amount it was proved that the trustee has paid...