Lagerholm v. Lagerholm

• Decision Date: 23 June 1908
• Citation: 112 S.W. 720,133 Mo. App. 306
• Parties: LAGERHOLM v. LAGERHOLM.
• Court: Missouri Court of Appeals

112 S.W. 720

133 Mo. App. 306

LAGERHOLM v. LAGERHOLM.

St. Louis Court of Appeals. Missouri.

June 23, 1908.

Rehearing Denied October 6, 1908.

DIVORCE — JURISDICTION — JURISDICTION OF PERSON—RESIDENCE OF PLAINTIFF.

Where, in a divorce suit, plaintiff alleged he was a resident of B. county, on proof that he was a resident of J. county, the suit was properly dismissed, though the question of jurisdiction was not raised by plea in abatement.

Bland, P. J., dissenting.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by D. W. Lagerholm against Laura Bell Lagerholm. From a judgment dismissing the petition and cross-bill, defendant appeals. Affirmed.

Ernest Green, for appellant. Andrew C. Ketring, for respondent.

BLAND, P. J.

The action is for divorce. In his petition plaintiff alleged indignities, which, if true, were sufficient under the statute to entitle him to the relief prayed for. The answer was a general denial and a cross-bill, in which defendant alleged such misconduct and indignities as to entitle her to a divorce, if she was the innocent and injured party. The parties were married in the city of St. Louis in 1890, and continued to live in said city until the year 1905, when they purchased a farm in Jefferson county, Mo., and established their home thereon. The suit was brought in the Butler circuit court. The summons was served on defendant at her home in Jefferson county. There was a mortgage of $1,000 on the farm. Plaintiff testified that, after they moved to the farm, it was mutually agreed between himself and wife that he should go to Poplar Bluff, in Butler county, and earn wages and pay off the mortgage; that he went there, and out of his earnings paid $350 on the mortgage, also the interest thereon and some back taxes; that, after going to Poplar Bluff, he made frequent visits of from four to six days duration to his home in Jefferson county, and these visits continued until a short time before he brought his suit for divorce. After both parties had offered their evidence, the court called plaintiff to the witness stand and the following occurred: "By the Court: Q. Why did you come down here? A. The money we had in the bank commenced to run down. We only had $94, and it was approaching the time when I should pay the interest, and I knew I had a big mortgage and I had nothing to redeem that mortgage. Q. You thought you could hire a man to run that farm to do as well as you could, and you could come down here and make some money to pay off the mortgage? A. Yes, sir. Q. When you got your mortgage paid off, you wanted to go back and live there? A. Yes, sir. Q. That is your home? A. Yes, sir. Q. And is yet? A. Yes, sir. Q. And has been all the time? A. Yes, sir. By Court: You had better take your divorce suit up to the county where you belong. I don't believe I have jurisdiction to try divorce cases for people living all over the state. By Defendant: We are forced into court, being brought in here to answer this petition, and, being forced in here, we think your honor has jurisdiction of the cross-bill." Whereupon both the petition and cross-bill were dismissed by the court and judgment was rendered against plaintiff for the costs, from which action of the court defendant appealed.

Plaintiff's evidence shows that his place of residence was in Jefferson county at the time he brought the suit. Therefore, the question in the case for decision is whether the provisions of the statute requiring that "proceedings (in divorce cases) shall be had in the county where the plaintiff resides" (section 2922, Ann. St. 1906) is jurisdictional, or merely prescribes the venue of such cases. In Pate v. Pate, 6 Mo. App. 49, this court...