Leutzinger v. McNeely

• Decision Date: 05 May 1925
• Citation: Leutzinger v. McNeely, 273 S.W. 241, 216 Mo.App. 699 (Mo. App. 1925)
• Parties: FELIX LEUTZINGER, Appellant, v. CLARA M. McNEELY, Administratrix of the Estate of MINNIE LEUTZINGER, Deceased, Respondent.
• Court: Missouri Court of Appeals

273 S.W. 241

216 Mo.App. 699

FELIX LEUTZINGER, Appellant, v. CLARA M. McNEELY, Administratrix of the Estate of MINNIE LEUTZINGER, Deceased, Respondent.

Court of Appeals of Missouri, St. Louis

May 5, 1925

Appeal from the Circuit Court of Jefferson County.--Hon. James Booth, Special Judge.

AFFIRMED.

Judgment affirmed.

Joseph G. Williams for appellant.

R. E Kleinschmidt for respondent.

(1) The evidence in this case was sufficient for court to grant the wife a divorce and to decree alimony in her favor.Hall v. Hall,117 Mo.App. 182;McCartin v. McCartin,37 Mo.App. 471.(2) In divorce casesthe appellate court will defer to the findings of the trial court, where the evidence is conflicting and evenly balanced.Munchow v Munchow,78 Mo.App. 99;Libbe v. Libbe,157 Mo.App. 701;19 C. J., pp. 192 and 193, secs. 477and478.

DAUESP. J. Becker and Nipper, JJ., concur.

OPINION

DAUES, P. J.--

This is an action for divorce between plaintiff and his wife, Minnie Leutzinger.Plaintiff's petition charges the wife with desertion; the wife filed a cross bill denying the allegations of the petition and charged plaintiff with indignities.The chancellor dismissed plaintiff's petition and found for defendant on her cross bill, awarding her an absolute divorce and decreed alimony in gross in the sum of $ 2000.After an appeal, without bond, was perfected to this court by plaintiff, the wife died, whereupon the death of the defendant was suggested and Clara M. McNeely, the only child of the litigants, the administratrix of the estate of defendant, entered her appearance, and thereupon counsel for plaintiff and defendant stipulated for a revival of the cause in the name of said administratrix.Appellant subsequently filed a motion to reverse the judgment on the record, the ground being that the judgment for alimony does not survive the death of the wife, and that this cause of action cannot be revived in the name of the respondent as administratrix appointed by the Superior Court in Los Angeles county, California.This motion was taken with the case, and at the outset presents a serious question for solution.

A certified copy of the appointment of said administratrix was duly filed in this court with respondent's motion to revive in the name of the administratrix, with her voluntary entrance of appearance.Before the case was set for hearing in this court, as already stated, counsel for the parties, in writing, stipulated that the cause be revived in the name of the respondent as such administratrix, and also stipulated for a continuance of the case to this term.

It is now argued that appellant's counsel had no power to stipulate that a foreign administratrix could represent the deceased in a revival of this action.Death, of course, ends the marriage contract.The question is whether a judgment for alimony in gross survives under the circumstances of this case.The alimony allowed by the trial court was an amount in gross, and no appeal bond having been filed, the entire sum was due and payable before the death of the wife.[Sections 1807and1473,Revised Statutes 1919.]

We find no Missouri case directly deciding the question as to whether when a divorce is granted the wife and alimony in gross is awarded, and she dies pending an appeal, her legal representatives may enforce the collection of the award.In the case of Downer v. Howard,44 Wis. 82, the Supreme Court of Wisconsin held that the administrator of the wife's estate is presumed to have such interest in behalf of the wife's creditors as to have the appeal continued in his name on a judgment for costs and suit money.In Coffman et al. v. Finney et al.,61 N.E. 155, the Supreme Court of Ohio held that when both parties died pending the appeal from a judgment for alimony, the cause survived as to the legal representatives of the parties.

Schouler, on Marriage and Divorce, etc., Vol. 2, sec. 1677, states the rule to be that "the action may survive as to judgment for alimony and the rights of third persons."

Keezer, in his work on Marriage and Divorce (second edition), sec. 436, says that when a divorce has been granted and alimony is allowed the action survives as to the judgment for alimony.Both authors cite Masterson v. Ogden,78 Wash. 644, 139 P. 654.It is there decided in a case exactly in point that though the divorce action as to the marriage bonds is ended by death of the wife after the appeal was granted, the action survived as to the judgment for alimony, and the alimony in that case was a money judgment.

In Ruling Case Law, sec. 214, the same rule is announced.

In our own jurisdiction it has been held in slander and libel cases, which ordinarily do not survive, that where there is a judgment in favor of plaintiff in the trial court the action does not abate but may be carried on in the name of the legal representative.[Lewis v. McDaniel,82 Mo. 577.]

In Nelson v. Nelson,282 Mo. 412, 221 S.W. 1066, our Supreme Court, on banc, has discussed, though not actually decided, this very question.In that opinion the history and effect of judgments for alimony is exhaustively reviewed.It is there said, at page 421, that an allowance of a sum of money in gross as alimony is given by the court as will fairly and reasonably compensate the wife for the loss of her support by the annulment of the marriage contract, and, said the court"in this limited sense at least it may be deemed an assessment of damages in her favor for breach of the contract by her husband."It is further said that statutory alimony is not support furnished by an unwilling husband on compulsion of a court, but is compensation for the loss thereof adjudged her in an action at law, citing Chapman v. Chapman,269 Mo. 663, 192 S.W. 448.The Nelsoncase, supra, also points out that such judgment for alimony in gross is subject to the same incidents as judgments in other action at law.The opinion further states that under the unwritten law, unpaid arrearages of alimony upon the decease of the wife could not be collected by her legal representatives.But by clear inferentiation the court viewsthe proposition differently under our present law, and we think admits the view that a judgment for alimony confers a vested property right in the wife.[See also: Lemp v. Lemp,249 Mo. 295, 155 S.W. 1057;...