Nolker v. Nolker.

• Citation: 226 S.W. 304
• Decision Date: 03 November 1920
• Docket Number: No. 16932.,16932.
• Parties: NOLKER v. NOLKER.
• Court: Court of Appeal of Missouri (US)

226 S.W. 304

NOLKER v. NOLKER.

No. 16932.

St. Louis Court of Appeals. Missouri.

November 3, 1920.

Rehearing Denied December 7, 1920.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

"Not to be officially published."

Suit for maintenance by Pearl Hyman Nolker against Robert E. Nolker. From an order granting maintenance pendente lite and suit money, defendant appeals. Affirmed.

See, also, 208 S. W. 135.

Frumberg & Russell, of St. Louis, for appellant.

Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for respondent.

ALLEN, J.

This is a suit by a wife for maintenance, under the provisions of section 8295, Revised Statutes 1909; and the appeal is by the defendant husband from an order sustaining a motion of plaintiff for maintenance pendente lite and suit money. To an understanding of the questions raised by the appeal, it will be necessary to give some history of the prior litigation between the parties, as shown by this record.

Plaintiff and defendant were married in this state on January 4, 1912, and lived together until on or about October 11, 1915. On May 19, 1916, the defendant husband filed suit for divorce against this plaintiff, who answered but filed no cross-bill. The divorce case was disposed of in the circuit court on June 4, 1917, the court dismissing the bill of the husband, plaintiff therein, defendant here. From that judgment this defendant prosecuted an appeal to the St. Louis Court of Appeals, where, in an opinion filed January 7, 1919, the judgment of the circuit court was affirmed. See Nolker v. Nolker, 208 S. W. 128.

On the very next day after the judgment of the circuit court in the divorce suit, to wit, on June 5, 1917, this plaintiff filed a suit for maintenance against this defendant, being cause No. 10716 in the circuit court. The petition therein alleged that on October 11, 1915, defendant abandoned plaintiff without any cause, and ever since refused, failed, and neglected to maintain and provide for her. To the petition of the plaintiff in that suit the defendant filed an answer, setting up in defense the same matters which had been alleged by him in the divorce suit as grounds for divorce; and to this answer plaintiff filed a reply. After the issues had been thus made up therein, the defendant husband filed a motion for judgment on the pleadings. That motion set up that the reply filed therein by plaintiff showed that the parties to the suit were the same as those to the divorce suit, and that the facts at issue in both suits were the same; and further that it appeared from the plaintiff's reply therein that the divorce suit was then pending on appeal and remained undisposed of. This motion concluded with the following prayer:

"Wherefore, by reason of the premises, defendant prays that he may have judgment that said cause may abate and plaintiff's petition therein may be dismissed."

On March 11, 1918, the circuit court sustained this motion and entered the following judgment in said cause No. 10716, namely:

"Now at this day, the court having heard and duly considered the defendant's motion heretofore filed and submitted herein, for judgment on the pleadings, and having also seen and examined and duly considered the pleadings herein, and the arguments of counsel for its respective parties, doth order that said motion be, and the same is hereby, sustained.

"And it is therefore further ordered and adjudged by the court that the plaintiff's petition herein be, and the same is hereby, dismissed, and that the defendant be discharged, and go hence without day, and recover of the plaintiff the costs of this proceeding, and have therefor execution. Memo filed."

In that maintenance suit, No. 10716, the plaintiff appealed to this court from the aforesaid judgment on the pleadings, of March 11, 1918. When that appeal came on to be heard in this court, the cause was by us transferred to the Supreme Court on the ground that we were without jurisdiction therein. See Nolker v. Volker, 208 S. W. 135. And it now appears that plaintiff's appeal therein was subsequently dismissed in the Supreme Court.

As shown above, the divorce suit remained pending until January 7, 1919, when the judgment therein was affirmed by this court. Thereafter, on March 12, 1919, the maintenance suit from which this present appeal arises was filed in the circuit court by plaintiff, returnable to the April term, 1919, of that court.

The petition in the instant maintenance suit alleges that —

The defendant, "on the 11th day of October, 1915, abandoned plaintiff without good cause and without any cause has refused, failed, and neglected to maintain and provide for her continuously and uninterruptedly since said date, and on each and every day since said date he has persisted in said abandonment and failure to support."

A motion for maintenance pendente lite and suit money was filed by plaintiff, which was overruled. Thereafter, on November 4, 1919, plaintiff filed an amended petition therein, and on the same day filed a motion for maintenance pendente lite and suit money. The defendant then filed a motion to dismiss plaintiff's motion for maintenance pendente lite and suit money. Defendant's said motion to dismiss sets up that in the former maintenance suit (No. 10716) plaintiff alleged that on October 11, 1915, defendant abandoned plaintiff without any cause and ever since that date refused, failed, and neglected to provide and maintain for her, and prayed judgment therein for plaintiff's support and maintenance, etc.; and that upon issue joined upon said petition the circuit court rendered the judgment of March 11, 1918, which we have set out in full above. The motion then proceeds as follows:

"Defendant further states that the plaintiff in said cause above mentioned was and is the same person who is the plaintiff in the present cause, and that the defendant therein was and is the same person who is named as defendant herein; that the same facts are alleged concerning the marriage of the parties and the alleged abandonment of the plaintiff by the defendant in said former suit as are alleged in the present suit; and the relief prayed for in said former suit is the same relief prayed for in plaintiff's amended petition herein.

"That it was judicially determined by the court in said former suit that the plaintiff was not entitled to have or maintain her said action, or to have or recover from defendant any judgment by reason of the matters and things alleged in her petition, all of which said allegations are repeated and set forth in the petition herein, and that said judgment heretofore referred to in said former suit was a full and final determination of the same matters and things that are alleged in plaintiff's petition herein, all of which said matters and things this defendant says have been adjudicated and determined against the plaintiff and the said defendant, and that said former judgment is a bar to the prosecution of this suit.

"II. That the cause of action heretofore referred to and numbered 10716 in the circuit court of the city of St. Louis, Mo., was between the same parties, involves the same subject-matter, and resulted in a final judgment in favor of the defendant and against plaintiff, finally adjudicating the same matters and things between said parties as is now sought to be adjudicated by this cause of action, and that said final judgment is a bar to the prosecution of this suit, or any motions or proceedings therein."

Thereafter, to wit, on December 1, 1919, the circuit court, by order duly entered of record, overruled defendant's motion to dismiss plaintiff's motion for maintenance pendente lite and suit money, and sustained plaintiff's said motion for maintenance pendente lite and suit money, and ordered and adjudged that the defendant pay to plaintiff the sum of $250 per month as maintenance pendente lite, and $350 forthwith as suit money; $250 thereof being allowed as attorneys' fees and $100 to be deposited as security for costs. From the judgment thus entered on these motions the defendant prosecutes the appeal now before us.

It is the contention of defendant, appellant here, that the judgment in the former maintenance suit is res adjudicata as to plaintiff's right to recover in the present suit. It is urged that this judgment, which became final by reason of plaintiff's dismissal of her appeal therein in the Supreme Court, constituted a final adjudication, adverse to plaintiff, of plaintiff's right to maintain a suit for maintenance predicated upon a wrongful abandonment of her by defendant on October 11, 1915; and that consequently plaintiff can not relitigate that matter in the present suit. And, as a corollary to this, it is said to in evitably follow that, since pla...