Kuhl v. Kuhl

• Decision Date: 07 November 1911
• Citation: 160 Mo. App. 363,140 S.W. 949
• Parties: KUHL v. KUHL.
• Court: Missouri Court of Appeals

140 S.W. 949

160 Mo. A. 363

KUHL v. KUHL.

St. Louis Court of Appeals. Missouri.

November 7, 1911.

1. DIVORCE (§ 150) — TRIAL — SUBMISSION.

Where an action for divorce is tried on defendant's default, it is proper for the court to take the case under advisement, and postpone decision to a later date.

2. DIVORCE (§ 151) — SUBMISSION — VACATION — ADDITIONAL TESTIMONY.

Where an action for divorce was tried on defendant's default and submitted, it was not error for the court to set aside the submission, and admit further testimony as to plaintiff's character.

3. DIVORCE (§ 142) — TRIAL — EVIDENCE PROCURED BY COURT.

Under Rev. St. 1909, § 2378, providing that in an action for divorce, where the proceedings are ex parte, the court before granting a divorce shall require proof of the good conduct of petitioner, the court, on hearing, an action for divorce on defendant's default, was not concluded by the allegations of the petition, nor

by the default, but could elicit facts bearing on plaintiff's conduct of its own motion.

4. DIVORCE (§ 124) — CONDUCT OF PLAINTIFF — EVIDENCE.

In an action by a wife for divorce, evidence of witnesses called at the court's instance held sufficient to show that plaintiff was guilty of misconduct warranting denial of a decree.

5. APPEAL AND ERROR (§ 712) — REVIEW — OBJECTIONS TO EVIDENCE.

In an action by a married woman for divorce tried on her husband's default, objections to questions asked by the court of its own motion cannot be considered, where the objectionable evidence is not pointed out on appeal.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by Lillian Kuhl against Warren E. Kuhl. From a judgment denying plaintiff a divorce, she appeals. Affirmed.

In this case, an action for divorce, defendant made default, and plaintiff (appellant), at the hearing on the default and inquiry, introduced evidence tending to prove the allegations of the petition with regard to misconduct of the defendant. There was also testimony that plaintiff was of good character, and behaved herself properly. At the close of the evidence offered by plaintiff, the court took the case under submission. On the following day, before decision and at the same term of court, the court in its discretion, for reasons not apparent in the record, set aside the submission, and redocketed the case for further hearing on November 5, 1909. On that day, the plaintiff and her counsel being present, the court of its own motion, and over the objection of the plaintiff, had Mrs. Laura Waldecker and other apparently reputable persons called and sworn as witnesses. They gave testimony tending to prove that plaintiff and witness' husband had been guilty of misconduct together. According to this testimony, the plaintiff often called Mr. Waldecker on the telephone, and was seen several times on the streets late at night with him, and had gone to the theater with him, and this after warnings and protests from Waldecker's wife. Plaintiff was seen to visit apartments over a saloon with Waldecker, and stay there with him several hours at night. He left his home and wife, and went to live in the same house where plaintiff resided. He and plaintiff both resided in the same flat at the time of the trial. No one else appears to have resided there with them except a sister of the plaintiff, and there is some doubt suggested by the testimony as to whether the sister was there when Waldecker first went there. When Mrs. Waldecker was testifying, plaintiff's counsel made an objection to a question asked by the court, and the court ordered him to sit down, and said, "No further objections will be received on your part," to which ruling the plaintiff excepted. But the court informed the plaintiff's counsel that he might cross-examine the witnesses, and gave him ample opportunity to do so. The court also stated its willingness to hear plaintiff as a witness and any witnesses on her behalf. For this purpose, on request of plaintiff's counsel, the case was laid over until the next Friday. But, despite such invitation and opportunity, plaintiff did not testify or offer any...