Johnson v. Johnson

• Decision Date: 09 June 1902
• Citation: 68 S.W. 971,95 Mo. App. 329
• Parties: JOHNSON v. JOHNSON.<SMALL><SUP>1</SUP></SMALL>
• Court: Missouri Court of Appeals

68 S.W. 971

95 Mo. App. 329

JOHNSON v. JOHNSON.¹

Court of Appeals at Kansas City, Missouri.

June 9, 1902.

DIVORCE—PETITION—ALLEGATIONS— RESIDENCE.

1. The statute relative to divorce provides that a plaintiff must have resided in the state one year next preceding the filing of the petition, unless the cause of action accrues in the state. A complaint alleged that plaintiff had resided in the state for more than a year continuously before the filing of the complaint, and allegations as to the acts of defendant were not sufficiently explicit to show them committed in the state. Held, that a motion in arrest of judgment should have been granted, the complaint not showing a residence for one year "next preceding" the filing of the petition.

2. Plaintiff contended that "before," as used in the petition, meant "preceding," which meant next preceding by force of Rev. St. 1899, § 4156, enacting that when the word "preceding" is used by way of reference to any section of the statutes it shall mean "next preceding." Held, that the statute has no reference to the word as used in pleading.

Appeal from circuit court, Jackson county; W. B. Teasdale, Judge.

Suit by Avis T. Johnson against Thomas R. Johnson. From a judgment for plaintiff, defendant appeals. Reversed.

Carey May Carroll, for appellant. Milton Campbell, for respondent.

ELLISON, J.

This is an action for divorce, in which the plaintiff prevailed in the trial court, and defendant, having failed in his motions for new trial and arrest of judgment, has appealed.

The point made by defendant's counsel on the motion in arrest relates to a radical defect in the allegation of the petition as to the residence of the plaintiff in this state. The allegation is that: "Plaintiff has been a resident of Jackson county, Missouri, for more than one whole year continuously before the filing of the original petition in this, and before this date also." The statute is that the plaintiff must have resided within the state one whole year next before filing of the petition. There is no statement that the offense or injury was committed in this state, or while the plaintiff resided in this state. By inference it may be gathered that some of the many small acts charged were committed in this state, but this is not sufficiently explicit, and was evidently not relied on by the pleader as avoiding the necessity of an allegation of residence which he undertook to make. The allegation does not meet the requirement of the...