Nolker v. Nolker., No. 16932.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtAllen
Citation226 S.W. 304
PartiesNOLKER v. NOLKER.
Docket NumberNo. 16932.
Decision Date03 November 1920
226 S.W. 304
NOLKER
v.
NOLKER.
No. 16932.
St. Louis Court of Appeals. Missouri.
November 3, 1920.
Rehearing Denied December 7, 1920.

[226 S.W. 305]

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."

226 S.W. 306

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...

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8 practice notes
  • Jeans v. Jeans, No. 7685
    • United States
    • Court of Appeal of Missouri (US)
    • May 28, 1958
    ...should be determined in the light of the character and object of the proceeding culminating in the judgment. Nolker v. Nolker, Mo.App., 226 S.W. 304, 307(3); Clark v. Fighting Wolf Mining Co., Mo.App., 209 S.W. 307, 308. We should examine and consider the judgment in its entirety, 13 and we......
  • State v. Smith, No. 25255.
    • United States
    • Court of Appeal of Missouri (US)
    • December 5, 1939
    ...& Co. v. Hartford Fire Insurance Co., 300 Mo. 1, 254 S.W. 266; Dahlberg v. Fisse, 328 Mo. 213, 40 S.W.2d 606; Nolker v. Nolker, Mo.App., 226 S.W. 304; Hobson v. Lenox, Mo.App., 201 S.W. 964; State ex rel. v. Wuderman, 192 Mo. 657, 179 S.W. 964; Wing v. Union Cent. Life Ins. Co., 167 Mo.App.......
  • Smith v. Pettis County, No. 36123.
    • United States
    • United States State Supreme Court of Missouri
    • January 23, 1940
    ...any part of the record proper. [Easton Food Center v. Beatrice Creamery Co. (Mo. App.), 119 S.W. (2d) 987; Nolker v. Nolker (Mo. App.), 226 S.W. 304.] We approve that rule and confirm its applicability to the ordinary case. But in a suit for a declaratory judgment, as is this one, is it not......
  • Nolker v. Nolker, No. 22785.
    • United States
    • United States State Supreme Court of Missouri
    • November 20, 1923
    ...time the present suit for divorce was begun. The order was later affirmed, however, by the St. Louis Court of Appeals. Nolker v. Nolker, 226 S. W. 304. Plaintiff remained in the apartment at the St. Regis after her husband left until about the time of the expiration of his lease, September ......
  • Request a trial to view additional results
8 cases
  • Jeans v. Jeans, No. 7685
    • United States
    • Court of Appeal of Missouri (US)
    • May 28, 1958
    ...should be determined in the light of the character and object of the proceeding culminating in the judgment. Nolker v. Nolker, Mo.App., 226 S.W. 304, 307(3); Clark v. Fighting Wolf Mining Co., Mo.App., 209 S.W. 307, 308. We should examine and consider the judgment in its entirety, 13 and we......
  • State v. Smith, No. 25255.
    • United States
    • Court of Appeal of Missouri (US)
    • December 5, 1939
    ...& Co. v. Hartford Fire Insurance Co., 300 Mo. 1, 254 S.W. 266; Dahlberg v. Fisse, 328 Mo. 213, 40 S.W.2d 606; Nolker v. Nolker, Mo.App., 226 S.W. 304; Hobson v. Lenox, Mo.App., 201 S.W. 964; State ex rel. v. Wuderman, 192 Mo. 657, 179 S.W. 964; Wing v. Union Cent. Life Ins. Co., 167 Mo.App.......
  • Smith v. Pettis County, No. 36123.
    • United States
    • United States State Supreme Court of Missouri
    • January 23, 1940
    ...any part of the record proper. [Easton Food Center v. Beatrice Creamery Co. (Mo. App.), 119 S.W. (2d) 987; Nolker v. Nolker (Mo. App.), 226 S.W. 304.] We approve that rule and confirm its applicability to the ordinary case. But in a suit for a declaratory judgment, as is this one, is it not......
  • Nolker v. Nolker, No. 22785.
    • United States
    • United States State Supreme Court of Missouri
    • November 20, 1923
    ...time the present suit for divorce was begun. The order was later affirmed, however, by the St. Louis Court of Appeals. Nolker v. Nolker, 226 S. W. 304. Plaintiff remained in the apartment at the St. Regis after her husband left until about the time of the expiration of his lease, September ......
  • Request a trial to view additional results

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