Hauck v. Hauck

• Decision Date: 05 February 1918
• Docket Number: No. 14975.,14975.
• Parties: HAUCK v. HAUCK.
• Court: Missouri Court of Appeals

200 S.W. 679

198 Mo. App. 381

HAUCK v. HAUCK.

No. 14975.

St. Louis Court of Appeals. Missouri.

Argued and Submitted January 7, 1918.

Opinion Filed February 5, 1918.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Suit by Hattie Hauck against Julius Hauck. From an order denying a motion to require plaintiff to give security for the payment of alimony and an allowance for the maintenance of a minor child, plaintiff appeals. Affirmed.

E. P. Johnson and Thos. H. Sprinkle, both of St. Louis, for appellant. Buder & Buder and Eugene Buder, all of St. Louis, for respondent.

REYNOLDS, P. J.

It appears that by judgment of date July 1st, 1903, in an action for divorce, in which appellant here was plaintiff and respondent, defendant, appellant, was divorced from respondent, awarded the custody of their minor son, then, as we gather, about 7 years of age, and allowed $15 a month, payable monthly for the maintenance of the boy. It also appears that an execution was issued on that judgment and a nulla bona return made on it by the sheriff on October 2nd, 1903, and a proceeding by garnishment sued out, to which the garnishee made answer December 14th, 1903, denying any indebtedness, and no denial being interposed, that proceeding ended. This appears to have been the last step taken in the case until on February 26th, 1915, the appellant (plaintiff in the divorce action) filed in the circuit court of the city of St. Louis a motion entitled in the cause, asking the court to require defendant therein—now respondent —"to give security, ample and sufficient, for the payment to her of the alimony adjudged to her in said cause, at the rate of $15 per month, payable on the first day of July, 1903, and a like sum payable to her on the first day of each month thereafter, for the maintenance of their minor male child, the care, custody and control of which said child, was therein adjudged to plaintiff." The motion further avers that no part of the above "alimony" has been paid, although payment has been demanded, and sets out the issue of an execution and its delivery to the sheriff of the city of St. Louis, the sheriff's return to the same unsatisfied and the garnishment proceeding, all as before mentioned. The motion coming on for hearing before the court, plaintiff introduced the judgment, execution, return and proceedings in garnishment. She also testified that she had supported the child; had received nothing from defendant; had no means of her own; that her former husband is a doctor and had married again in September or October, 1904, and that the son now, in 1915, then apparently about 19 years of age, earned $37 a month. Other of plaintiff's witnesses testified that defendant claimed to be in good practice and plaintiff's mother testified that she had contributed to the support of plaintiff. A letter from a brother of defendant to plaintiff, offering to make a compromise if plaintiff would accept $50 from him (the brother) and enter satisfaction of all claims against the defendant, was offered in evidence. The court excluded this, and at the conclusion of the hearing, denied the motion. From this plaintiff has appealed.

It is true that section 2375, Revised Statutes 1909, provides that where a divorce shall be adjudged the court shall make such order touching the alimony and maintenance of the wife and the custody and maintenance of the children as from the circumstances of the parties and the nature of the case shall be reasonable, "and when the wife is plaintiff, may order the defendant to give security for such alimony and maintenance." That same section further provides that upon neglect to give such security, the court may award execution, etc., and that the court, on the...