Munchow v. Munchow

• Decision Date: 11 November 1902
• Citation: 70 S.W. 386,96 Mo. App. 553
• Parties: MUNCHOW v. MUNCHOW.
• Court: Missouri Court of Appeals

70 S.W. 386

96 Mo. App. 553

MUNCHOW v. MUNCHOW.

Court of Appeals at St. Louis, Missouri.

November 11, 1902.

PLEADING — DEFECTS CURED BY VERDICT — PETITION — ABANDONMENT OF WIFE.

1. Defects and omissions in a pleading which would have been fatal on demurrer are cured by verdict, at common law, if the issue tried was such that it must have required proof of the fact defectively stated or omitted to authorize the verdict.

2. This rule is construed in this state and elsewhere to mean that the allegations contained in the pleading must raise a fair inference that the fact omitted or defectively stated existed.

3. Unless such inference can be drawn by necessary intendment from the averments made, the objection that the pleading fails to state a cause of action may be raised after judgment, and even on appeal, though no motion in arrest was filed.

4. Held, that a petition which alleged that plaintiff and defendant were husband and wife, and had lived together as such for more than two years, during all of which time plaintiff faithfully demeaned herself, and treated the defendant with kindness and affection, and that the defendant, wholly disregarding his duty as plaintiff's husband, willfully and maliciously abandoned her, and has ever since refused to provide for and maintain her, by a reasonable interpretation authorizes the inference that defendant abandoned the plaintiff without good cause, and a judgment for plaintiff will not be reversed when no point was made about the sufficiency of the petition below on the ground that it failed to state a cause of action.

(Syllabus by the Court.)

Appeal from St. Louis circuit court; Wm. Zachritz, Judge.

Action by Maggie Munchow against Frank Munchow. Judgment for plaintiff, and defendant appeals. Affirmed.

Brass & Brock, for appellant. Martin & Young, for respondent.

GOODE, J.

A judgment was entered in this action by the circuit court that the defendant pay to plaintiff $30 by April 1, 1902, and $10 per month thereafter, until further ordered by the court, and that he give bond for the faithful performance of his duty, in the sum of $500. This was on a petition charging the defendant with abandoning plaintiff and refusing to provide for and maintain her, to which petition an answer was filed, admitting the marriage of the parties, but denying all the other allegations. Only the record proper was brought up, and that without a motion for a new trial and in arrest of judgment having been filed; appellant's contention being that the petition omitted an essential allegation, to wit, that his abandonment of the plaintiff was without good cause, on account of which omission, it is insisted, the judgment must be reversed.

Judgments as to what defects and omissions of a pleading will be fatal after verdict, and what are cured thereby, have never been harmonious either in England or the United States. There are English cases holding that an entire failure to state, even defectively, a fact necessary to the plaintiff's recovery, is aided by verdict, while others hold that the defect is only cured if the fact can be gathered by fair intendment from other allegations contained in the pleading. A like diversity of opinion appears in the American cases; some holding that, if a fact necessary to recovery is entirely omitted, the judgment may stand, as it may be presumed to have been proved at the trial as indispensable to the decision given (Stanley v. Whipple, 2 McLean, 35, Fed. Cas. No. 13,286; Brent's Ex'rs v. Bank, 1 Pet., loc. cit. 93, 7 L. Ed. 65), while others hold that the omission is fatal if it is one of substance (Garland v. Davis, 45 U. S., loc. cit. 131, 11 L. Ed. 907). The decisions in Missouri exhibit the same discrepancy, some of the earlier treating the omission as cured by verdict if the omitted averment was of a fact which must have been proven to authorize the judgment. Frost v. Pryor, 7 Mo. 314; Palmer v. Hunter, 8 Mo. 512; Stephens v. Frampton, 29 Mo. 263; Richardson v. Farmer, 36 Mo. 36, 88 Am. Dec. 129. But it is now the settled rule in this state that the omission to state a fact which is essential to plaintiff's right of recovery is fatal, after judgment, provided the omission is total, — that is, if by any fair construction of the allegations an inference cannot be drawn that the necessary fact existed; and this on the theory that, while it is presumed that all essential facts were proven, no fact wholly unalleged could rightly be proven, and hence cannot be presumed to have been. Welch v. Bryan, 28 Mo. 30; Shaler v. Van Wormer, 33 Mo. 386; State v. Sullivan Co. Ct., 51 Mo. 522; Frazer v. Roberts, 32 Mo. 457. Nor is it necessary that a motion in arrest be filed, in order to raise the...