McKeehan v. McKeehan

• Decision Date: 31 October 1884
• Parties: MCKEEHAN, Appellant, v. MCKEEHAN
• Court: Missouri Supreme Court

84 Mo. 403

MCKEEHAN, Appellant,

v.MCKEEHAN

Supreme Court of Missouri.

October Term, 1884.

Appeal from Johnson Circuit Court.--HON. N. M. GIVAN, Judge.

AFFIRMED.

S. P. Sparks for appellant.

(1) The court erred in admitting in evidence the deed of separation. It constituted no bar to plaintiff's action after an offer to return. 1 Bish. Mar. & Div. § 806 (Ed. 1864); Stokes v. Stokes, 1 Mo. 320. (2) Plaintiff's offers to return and defendant's refusal to permit her were clearly established by the testimony. This constituted an “absenting himself without a reasonable cause,” and it continued for more than a year, and entitled plaintiff to a decree of divorce. Sec. 2174, R. S.; 1 Bish. on Mar. & Div., § 806-808. (3) The testimony of the defendant himself shows his intention never to permit the plaintiff to return to him by placing himself in such a situation as to make a return impossible. Gillinwaters v. Gillinwaters, 28 Mo. 60.

S. G. Kelley and O. L. Houts for respondent.

(1) Petition alleges that defendant “at divers times prior to the 20th day of April, 1875, offered such indignities towards plaintiff as to render her condition intolerable.” After specifying indignities, says that at that date “she finally left his bed and board on account of said conduct toward her, and has continuously remained away from him ever since.” The petition then states, by way of explanation of plaintiff's conduct in leaving and remaining away from defendant, that plaintiff afterwards, “at three different times, besought defendant to renew their marriage relations, but that defendant refused to permit her.” The action is clearly based upon the ground of indignities. The petition contains but one count and sets out the acts of indignity. It could not allege abandonment in the same count; besides the allegation that plaintiff had offered to return and defendant would not permit her is not equivalent to saying “that defendant had absented himself without reasonable cause for a space of one year.” The offer to return and refusal, if proven, would only be evidence of abandonment. The facts of abandonment, if relied on, must be distinctly alleged, and not the evidence thereof. (2) The deed of separation showed that the separation was voluntary, contradicted the allegations of plaintiff's petition to the effect that she had been compelled to leave defendant; also, her statements as to her offers to return, and was competent evidence. (3) Upon all the evidence in the case, it was the duty of the court to dismiss plaintiff's bill. Messenger v. Messenger, 56 Mo. 329.

MARTIN, C.

The plaintiff sued the defendant for a divorce, alleging that the defendant had offered such indignities towards her as to render her condition intolerable. The character of the indignities is set forth in the petition. The defendant denied the charges made in the petition, and filed a cross-bill asking for a divorce on the ground of abandonment. The court heard the testimony of the parties themselves and of other witnesses, and dismissed the application of both sides on the ground that neither of them was entitled to a divorce. The plaintiff appeals from this action of the court.

The indignities about which the plaintiff testified were all contradicted by the evidence produced by defendant. The decree dismissing her bill is sustained by the evidence, and cannot be disturbed on...