Nolker v. Nolker

• Decision Date: 07 January 1919
• Docket Number: No. 16243.,No. 16229.,16229.,16243.
• Citation: 208 S.W. 135
• Parties: NOLKER v. NOLKER.
• Court: Missouri Court of Appeals

208 S.W. 135

NOLKER v. NOLKER.

No. 16229.

No. 16243.

St. Louis Court of Appeals. Missouri.

Argued and Submitted November 20, 1918.

Opinion Filed January 7, 1919.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Suit by Pearl Hyman Nolker against Robert E. Nolker for support and maintenance. From a judgment striking her amended petition from the files, plaintiff appeals; and from an order allowing suit money, the defendant appeals. Transferred to the Supreme Court, as involving an amount in excess of the jurisdiction of the Court of Appeals.

Fauntleroy, Cullen & Hay, of St. Louis, for appellant.

Frumberg & Russell and Hiram N. Moore, all of St. Louis, for respondent.

REYNOLDS, P. J.

The main case (208 S. W. 128), an appeal by plaintiff, was argued and submitted and afterwards, it appearing that there was a cross-appeal in the same case by the defendant from an allowance of $750 to the plaintiff for carrying on the appeal before our court, the latter was submitted by counsel on stipulation that it was to be considered on the same record, abstract, briefs and arguments as in the main case.

The original petition is not before us. The case was commenced in the circuit court of the city of St. Louis, on June 5th, 1917. Process was served on defendant on June 6th of that year. It appears that an action for divorce had been brought in the circuit court of the city of St. Louis by Robert E. Nolker, defendant here, against his wife, Pearl Elizabeth Hyman Nolker, plaintiff here, in which a decree was entered on June 4th, 1917, dismissing that plaintiff's action. Within due time plaintiff in that cause filed a motion for new trial, which was overruled and the plaintiff appealed to our court, where it was argued and submitted and that judgment affirmed by our court. In the present action, plaintiff, Mrs. Nolker, filed an amended petition, averring that defendant, her husband, is possessed of over $500,000 of property, yielding him an income of 6 Or 7 per cent. per annum, and she prays that defendant be ordered to pay her for her support and maintenance the sum of $1,000 monthly, beginning with October 12th, 1915; that he be compelled to give security for her maintenance, and that his property be sequestrated and held to secure the payment of the judgment, and that a reasonable sum be allowed pending the hearing of the cause for the support of plaintiff, and a reasonable sum be allowed in favor of plaintiff's attorney for the prosecution of the suit. To this petition an answer was interposed, admitting the marriage, but generally denying all the allegations in it. This was filed November 8th, 1917. On January 14th, 1918, by leave of court, defendant withdrew his answer and filed a plea in abatement, on the ground of the pendency on appeal of the divorce case before mentioned. A demurrer to this plea was sustained and judgment entered on the plea in abatement. Afterwards, on January 16th, 1918, the defendant, by leave of court, filed an amended answer, setting up the divorce case, the judgment therein and an appeal from that judgment, not, however, setting up in whose favor that judgment was, nor who appealed, and it averred that this same case is now pending in the St. Louis Court of Appeals. To this amended answer the plaintiff in this present action filed a reply, in which it is, among other things, pleaded that in the divorce action the plaintiff here, there the defendant, did not by her pleadings or otherwise, ask for support and maintenance and had no opportunity to ask for support and maintenance in that cause and that the court had no jurisdiction to allow or deny support and maintenance in that action and did not either grant or deny her right to maintenance. On the filing of this reply, and on January 21st, 1918, defendant filed a motion for judgment on the pleadings. The court sustained that and on the same day plaintiff filed a motion for permission to file an amended petition. That was granted and she filed her amended petition. On motion of defendant the second amended petition was stricken from the files. In the meantime and at the time of filing the amended petition, that is, January 16th, 1908, plaintiff filed a...