Mossberger v. Mossberger
| Decision Date | 04 November 1919 |
| Citation | 215 S.W. 760,202 Mo.App. 271 |
| Parties | AMY M. MOSSBERGER, Respondent, v. WILLIAM A. MOSSBERGER, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Vital W. Garesche, Judge.
Judgment affirmed.
Thomas Morris for appellant.
C. J Anderson for respondent.
ALLEN J. Becker, J., concurs. Reynolds, P. J., dissents, being of the opinion that the petition is fatally defective.
This is an action by a wife against her husband for separate maintenance, under the provisions of section 8295, Revised Statutes 1909; and the appeal before us is one by the defendant from an order allowing the plaintiff maintenance pendente lite and suit money. The case is here upon the record proper only, no bill of exceptions having been filed.
At the outset we shall dispose of a motion, filed by respondent, to dismiss the appeal because of the failure of appellant to comply with an order made by this court at our last term, on motion of respondent, requiring the appellant to file an additional appeal bond. As to this we may say, in passing that we have some doubt as to whether we acted within our authority, as an appellate court, in making the order mentioned. It is wholly unnecessary, however, to here discuss that question, since it is quite obvious that we are without power to dismiss appellant's appeal because of his failure to comply with such order. Had appellant filed no bond at all he would nevertheless have been entitled to prosecute his appeal in this court, and consequently, irrespective of the amount of the bond, he is entitled to have this court pass upon the questions properly presented by the appeal. In any event, we could do no more than make an order vacating the supersedeas because of appellant's failure to comply with the order in question. The motion to dismiss must consequently be overruled.
It is argued for appellant that plaintiff's petition wholly fails to state a cause of action for maintenance and that consequently the trial court was without authority or jurisdiction to make the order appealed from.
The Statute, section 8295, Revised Statutes 1909, provides that "when the husband, without good cause, shall abandon his wife and refuse or neglect to maintain and provide for her, the circuit court, on her petition for that purpose, shall order and adjudge such support and maintenance to be provided," etc. The petition herein, strange to say, does not follow the plain language of the statute and in terms allege an abandonment without good cause, nor indeed, does it directly allege an abandonment at all. The pertinent allegations of the petition are as follows:
"Plaintiff states that on or about the 7th day of February 1911 in the City of St. Louis in the State of Missouri, she was lawfully married to the defendant; that thereupon the defendant brought this plaintiff to the home of defendant's mother, where said plaintiff and defendant continued to live together for a period of about five (5) days; that thereupon said defendant ordered this plaintiff to leave the home of said defendant and defendant's mother; that thereafter for a period of about one year said defendant lived with this plaintiff at the home of the plaintiff's mother at various intervals of one, two or three days each; that ever since the marriage aforesaid plaintiff has discharged all her duties as the wife of said defendant and at all times treated him with kindness and affection; but the said defendant, wholly disregarding his duties as a husband of this plaintiff, has at all times since the marriage aforesaid failed and refused to contribute to the support of plaintiff, and has at all times since the marriage aforesaid refused to make any provision for a home for this plaintiff, and has at all times since the marriage aforesaid refused to live with this plaintiff except as hereinabove stated."
It is true that if the petition wholly fails to allege, in any manner, a fact or facts essential to plaintiff's right of recovery, the defect is fatal, even after judgment, and advantage may now be taken of the error, arising, as it...
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