Lane v. Lane
| Decision Date | 20 May 1929 |
| Docket Number | No. 16431.,16431. |
| Citation | 17 S.W.2d 584 |
| Parties | LANE v. LANE. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Linn County; J. E. Montgomery, Judge.
"Not to be officially published."
Suit by John C. Lane against Imogene Lane. From a judgment modifying a decree of alimony, defendant appeals. Affirmed.
Lon R. Owen, of Brookfield, for appellant.
Thos. P. Burns, of Brookfield, for respondent.
This is an appeal from a judgment of the court modifying a decree of alimony. This is the second appeal in the case. See Lane v. Lane (Mo. App.) 292 S. W. 1066. After the cause was remanded plaintiff filed an amended motion to modify, and after hearing evidence thereon introduced in behalf of the respective parties the court modified the decree, as of the date of the filing of the original motion to modify, by adjudging that plaintiff should not be required to pay defendant any further alimony after said date. Defendant has appealed.
It is contended by the respondent that there is nothing before this court except the record proper, for the reason that the bill of exceptions contains no motion for a new trial and no exceptions to the action of the court upon such motion, if any.
Upon an examination of the abstract we find what purports to be a motion for a new trial designated as a "motion to set aside and modify decree," and that this is contained in the record proper together with the ruling of the court thereon and the exception of the defendant thereto. In view of the fact that there is no motion for a new trial contained in the bill of exceptions, respondent's contention is well taken. Smith v. Ins. Co. (Mo. App.) 211 S. W. 910; State ex rel. v. Victory Home Owners' Savings & Loan Co. (Mo. App.) 291 S. W. 1080; Barham v. Shelton, 221 Mo. 66, 119 S. W. 1089; Brown v. O'Brien (Mo. App.) 217 S. W. 600.
After respondent served his brief upon appellant raising the question now under consideration and after said brief was filed in this court, appellant filed an application for permission to file an additional abstract of record to show in its proper place the motion for a new trial and the exception to its overruling. Of course, after respondent called attention to the matter in a proper way it is too late for appellant to file an amended abstract without respondent's consent, and her application will therefore be denied. Barham v. Shelton; Brown v. O'Brien, supra; Karcher v. Jackson et al. (Mo. Sup.) 217 S. W. 48; Crain v. Ins. Co. (Mo. App.) 267 S. W. 50; Underwood v. Murphy (Mo. App.) 286 S. W. 123. The only reason assigned by appellant for her failure to file a proper abstract is that she was guilty of "inadvertence and oversight." This reason, of course, is insufficient. Brown v. O'Brien, supra.
While respondent did not attempt to follow the procedure laid down in the amendment to rule 15 of this court, the amendment to that rule has no application to the situation now before us. As was said in State ex rel. v. Loan Co. (Mo. App.) 291 S. W. 1080, 1081: "The matter of the timely filing and overruling of a motion for a new trial and the signing and the filing of the bill of exceptions may have been cured by the amendment of rule 15 of this court, but it was necessary for appellant, in order to perfect his appeal, to show in the record proper the filing of the motion for a new trial and that a judgment was rendered, and to show in the bill of exceptions, the motion itself and the ruling thereon. (Italics ours.)
Appellant insists that the motion to modify is insufficient, in that it does not plead the facts on which plaintiff seeks modification. It is unnecessary to pass upon the question as to whether or not the pleading of conclusions would not be sufficient to support the judgment at this stage of the proceedings for the reason there are ample ultimate facts pleaded in the motion that cannot be construed to be mere conclusions. The motion, among other things, pleads that since the original judgment was rendered plaintiff's health has become impaired and he is unable to live and meet the burden of the payments required by the original judgment; that plaintiff's present wife has been sick, which has resulted in the necessity of his employing surgeons to perform operations upon her, entailing great outlays of money; that since the divorce defendant has come into possession "of more property than plaintiff"; and that defendant has been and is making money on her own account.
Although not raised by the respondent, there is another matter which prevents us from considering the appeal upon its merits; that is, the insufficiency of appella...
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