Grenzebach v. Grenzebach

• Decision Date: 24 April 1906
• Citation: 94 S.W. 567,118 Mo.App. 280
• Parties: GRENZEBACH, Appellant, v. GRENZEBACH, Respondent
• Court: Missouri Court of Appeals

94 S.W. 567

118 Mo.App. 280

GRENZEBACH, Appellant, v. GRENZEBACH, Respondent

Court of Appeals of Missouri, St. Louis

April 24, 1906

Appeal from St. Louis City Circuit Court.--Hon. O'Neill Ryan Judge.

AFFIRMED.

STATEMENT.--The suit is by the wife against the husband for divorce from the bonds of matrimony. The charge in the petition is that the husband offered to the wife such indignities as to render her condition intolerable. There was personal service had on defendant who is a resident of the city of St. Louis. No answer was filed and no defense made by him.

It was shown in evidence on the part of plaintiff that they were married at Denver, Colorado, in 1900, and afterward removed to St. Louis, where they have since resided; that he conducted a saloon for a time and afterwards worked at his trade, that of a brickmason, in which occupation he was a foreman; that he drank liquors excessively and was under the influence thereof much of the time, coming home at a late hour at night for his supper and often would require his wife to arise from bed and prepare the meal for him. At other times he would remain around the saloons drinking until two or three o'clock in the morning. They lived in a flat of three rooms and he provided his wife with a housemaid all of the time. On one or more occasions he endeavored to put his arm around and caress the maid. He frequently cursed and used profane language toward his wife and on several occasions endeavored to strike her with a shoe. She was not very strong, was nervous and excitable and was greatly worried much of the time by his conduct and had separated from him on a prior occasion, remaining away for several months, but returned and continued to live with him for possibly three years thereafter. It was also shown that he was seen out at a late hour not long prior to the last separation, in a carriage with a woman, both of them in an intoxicated condition. The carriage collided with a post, and they were thrown therefrom, whereupon the woman used profane language. The plaintiff also testified that he told her to leave him and let her brothers support her. Several witnesses testified to the good behavior and conduct of the wife, and it was shown that her behavior toward her husband had been kind and affectionate and otherwise she was a good wife. In fact, it appears to one reading the record, without having the opportunity to see, survey and study the witnesses, that the plaintiff made a good case for divorce, and this, too, beyond question, were it not for the cropping out of the fact that the wife frequented his saloon, as will appear from her testimony quoted.

After the evidence heretofore recited had been introduced, and immediately prior to the submission of the cause, the court for reasons which we must presume were sufficient to it, but which fail to appear from the record, recalled the plaintiff of its own motion, whereupon she testified a second time that several years before, she had separated from her husband, and the court, pressing the examination, inquired:

"Q. Where were you living then? A. On South Broadway. We had a saloon there and he did not work at his trade then.

"Q. What was the cause of the separation then? A. I could not tell you. He would be drunk all of the time. His friends would ask me to come in and have a glass of soda and I would do it for business, and he would be jealous. We only had been married a short time.

"Q. You have not stated the cause of the separation? A. We had a quarrel and he throwed me out.

"Q. In what way? A. He throwed me down the steps.

"Q. How long were you separated then? A. Three months.

"Q. What induced the quarrel? A. Because I came in the place and had a drink with his friend--he asked me to have a drink--and I had a drink of soda for business sake. We had to be polite being in that business."

At the conclusion of this evidence, the following appears from the bill of exceptions

"Thereupon the court stated that the testimony given was not satisfactory and suggested that it wanted to hear defendant and as he had been personally served with summons and lived here, asked plaintiff's counsel if he would have him brought in by subpoena, which counsel said he would do and the case passed for that purpose to January 6, when counsel did not appear and it was passed by the court to January 13th, again to January 20th, 27th, and February 10th, on which date counsel appeared and stated he would submit the case without defendants evidence or any further testimony and thereupon the court took the case under advisement and on February 23, 1905, dismissed the petition and case."

Judgment affirmed.

F. A. C. MacManus for appellant.

NORTONI, J. Bland, P. J., and Goode, J., concur.

OPINION

NORTONI, J. (after stating the facts).

It is true as a general proposition that under our laws divorce is a legal right, and when facts entitling the parties to it are made to appear on proper pleadings and service, courts have no discretion to deny it. [Deschodt v. Deschodt, 59 Mo.App. 102; Kilpatrick v. Kilpatrick, 80 Mo.App 70; Ulrey v. Ulrey, 80 Mo.App. 48.] And it seems from the record in this case that the plaintiff adduced an abundance of competent evidence tending to support her charge of indignities; that her husband is a vile brute of a man and persistently annoyed her with his cruel and unmanly conduct, thereby rendering her condition intolerable, etc., that she was a woman of good character who had conducted herself with kindness and affection toward him and discharged all of her wifely duties, and from the evidence alone, it would seem that the court should have granted the divorce. There are other things than the mere words of witnesses to be considered, however, in passing upon the question of the weight and value of testimony and the influence it should have upon the trial court. There is always great danger of imposition and fraud being practiced upon the court in ex parte divorce proceedings, and in contemplation of this recognized truth, the Legislature, in which is vested full authority in that behalf, has manifested the public policy of the State on the question by providing: "Where the proceeding shall be ex parte, the court shall, before it grants the divorce, require proof of the good conduct of the petitioner and be satisfied that he or she is an innocent and injured party." [...