Keller v. Keller

• Decision Date: 06 June 1910
• Citation: 144 Mo. App. 98,129 S.W. 492
• Parties: KELLER v. KELLER.
• Court: Missouri Court of Appeals

129 S.W. 492

144 Mo. App. 98

KELLER v. KELLER.

Kansas City Court of Appeals. Missouri.

June 6, 1910.

1. DIVORCE (§ 91)—PLEADING—RESIDENCE IN STATE.

Under the statute providing that a person suing for divorce shall have resided in the state one year "next before" the filing of the petition, a petition for divorce alleging that plaintiff "has resided in the state of Missouri one whole year before the filing of this petition" is fatally defective.

2. APPEAL AND ERROR (§ 585)—RECORD—ABSTRACT— COUNTER ABSTRACT.

Where plaintiff did not present a counter abstract, he could not deny the accuracy of defendant's abstract by merely referring the appellate court to the transcript.

Error to Circuit Court, Livingston County; Arch B. Davis, Judge.

Action by Andrew J. Keller against Sarah F. Keller. From a judgment for plaintiff, defendant brings error. Reversed and remanded.

Frank W. Ashby, for plaintiff in error. P. G. Crowe, for defendant in error.

ELLISON, J.

Plaintiff brought an action for divorce against defendant, and in due course thereafter was granted a decree by the trial court. Within 60 days defendant sued out a writ of error. The petition is fatally defective. Not alleging that the cause for divorce accrued in this state, it then fails to allege that plaintiff had resided in this state one whole year next before the filing of the petition. It does allege that he "has resided in the state of Missouri one whole year before the filing of this petition." But that is not sufficient. He should have stated the year to be the year "next" before filing the petition. The statute requires the residence to be "next before." One may have resided one year before, at some distant time anterior. Collins v. Collins, 53 Mo. App. 470; Carter v. Carter, 88 Mo. App. 302; Johnson v. Johnson, 95 Mo. App. 329, 68 S. W. 971; Stansbury v. Stansbury, 118 Mo. App. 427, 94 S. W. 566; Coulter v. Coulter, 124 Mo. App. 149, 100 S. W. 1134.

It appears from plaintiff's brief that, after the decree and pending the issuance of the writ of error, the petition was lost. Defendant then undertook to have the trial court supply it and the court did so. But plaintiff contends it was not properly done. The abstract of the record as presented by defendant sets out the pleadings, consisting of the petition, answer and reply. It does not disclose that the petition is a supplied copy. There is no counter abstract and we accept that of defendant. We cannot allow the mere assertion of a...