Pate v. Pate

• Decision Date: 14 May 1878
• Citation: 6 Mo.App. 49
• Parties: ADALINE B. PATE, Appellant, v. ROBERT C. PATE, Respondent.
• Court: Missouri Court of Appeals

6 Mo.App. 49

ADALINE B. PATE, Appellant,

v.ROBERT C. PATE, Respondent.

St. Louis Court of Appeals, Missouri.

May 14, 1878.

1. The plaintiff in a divorce suit must be a resident of this State at the time of the institution of the suit, though the cause of action accrued within this State and while one party resided here, and must in any case, be a resident of the county in which the action is brought.

2. Where the wife is plaintiff in a divorce suit, she cannot sustain her action on her husband's domicile in Missouri.

3. It is not enough that jurisdiction in a divorce suit appears from the whole record: the libel must allege every fact the existence of which the statute makes necessary to the granting of the divorce; and when this is not done, substantially, the bill should be dismissed. Where a jurisdictional fact does not appear on the face of the petition, the court can take no valid step.

APPEAL from St. Louis Circuit Court.

Affirmed.

MARSHALL & BARCLAY, for appellant: It is not necessary to allege a year's residence, where the cause of action accrued within this State.-- Cheatham v. Cheatham, 10 Mo. 296. The jurisdiction is determined by the whole record, and not by isolated portions.-- Brown v. Woody, 64 Mo. 548. A wife may sustain her action for divorce on the husband's domicile, though living abroad herself.-- Mastin v. Mastin, 15 N. H. 159; Harrison v. Harrison, 20 Ala. 629; Kashaw v. Kashaw, 3 Cal. 312; Davis v. Davis, 30 Ill. 180.

S. SIMMONS, for respondent, cited Cheatham v. Cheatham, 10 Mo. 296; Kruse v. Kruse, 25 Mo. 68; Cole v. Cole, 3 Mo. App. 571; 2 Bishop on Mar. & Div., sects. 155, 720.

BAKEWELL, J., delivered the opinion of the court.

This is a bill for divorce. The defendant, after the answer and replication had been filed, moved to dismiss on the ground that the petition does not contain allegations essential to confer jurisdiction on the court, in that it is not alleged that plaintiff was a resident of St. Louis County when the petition was filed, and that it is not alleged that plaintiff has resided in this State for one whole year next before the filing of her petition. The motion was sustained and the bill dismissed; and plaintiff appeals.

The petition alleges that the injuries complained of were committed by defendant within this State; the marriage of the parties in 1857, and their cohabitation; the good demeanor of the plaintiff; and the cause of divorce, which is alleged to be desertion. The answer avers that defendant is divorced from plaintiff by a decree of divorce obtained by him in the St. Louis Circuit Court in December, 1870. The reply is that that decree is null for fraud; that plaintiff and defendant lived together in St. Louis as husband and wife in 1870 and since; that in the summer of that year defendant requested plaintiff to return to her former place of residence, near Lawrenceburg, Indiana, whilst he went to the races at Long Branch; that in compliance with that request she left Missouri temporarily, and that during her absence defendant fraudulently obtained a decree of divorce, by publication; that plaintiff never heard of this pretended decree until after this suit was begun, and that since the decree plaintiff and defendant have lived together as husband and wife in St. Louis.

The statute provides (Wag. Stats. 533, sect. 2) that proceedings for divorce shall be had in the county in which plaintiff resides. Our Supreme Court has expressly decided that under the provisions of this section the plaintiff in a divorce suit must be a resident of this State at the time of the institution of the suit. Kruse v. Kruse, 25 Mo. 68. Appellant contends that the case of Kruse v. Kruse is not in point, because in that case both parties were non-residents, and the cause of action did not accrue in Missouri. It is insisted that inasmuch as sect. 4 of the same statute (Wag. Stats. 534) provides that the petitioner must have resided in the State for one whole year next preceding the application unless the offence was committed within this State, or while at least one of the parties resided in the State, therefore the true construction of the law is that, where residence is necessary, the action must be brought where plaintiff resides, but that where the offence was committed within the State, or whilst one party resided here, residence of the plaintiff at the time of suit is not essential.

There is nothing whatever in this argument. The statute is too plain upon this point to need construction. The plaintiff must in any case reside in the county where proceedings are commenced, and cannot reside there without residing in the State. A glance at the statement of the case in Kruse v....