Pickel v. Pickel

• Decision Date: 16 July 1913
• Citation: 176 Mo. App. 673,159 S.W. 774
• Parties: PICKEL v. PICKEL.
• Court: Missouri Court of Appeals

159 S.W. 774

176 Mo. App. 673

PICKEL v. PICKEL.

St. Louis Court of Appeals. Missouri.

July 16, 1913.

Rehearing Denied October 6, 1913.

1. APPEAL AND ERROR (§§ 270, 544) — ORDER AFTER JUDGMENT — REVIEW — EXCEPTIONS — BILL OF EXCEPTIONS — NECESSITY.

Where plaintiff, having been awarded a decree against her husband for maintenance, brought suit to set aside conveyances by defendant to his father as fraudulent, and to sequester the property to the end of compensating the decree for maintenance, and, the judgment in that suit having been reversed, plaintiff moved in the maintenance suit for suit money, which was granted, such order, though entered after judgment, could only be reviewed on an exception duly reserved thereto, and by preserving the motion by bill of exceptions.

2. APPEAL AND ERROR (§ 82) — ORDERS APPEALABLE — ORDER AFTER JUDGMENT.

An order granting a wife's motion for suit money after judgment, in a suit for separate maintenance, is appealable apart from the judgment.

Appeal from St. Louis Circuit Court; Charles Claflin Allen, Judge.

Action by Ella M. Pickel against Frederick J. Pickel. From an order awarding plaintiff suit money, defendant appeals. Affirmed.

See, also, 158 S. W. 8.

Barclay, Fauntleroy, Cullen & Orthwein, of St. Louis, for appellant. Randolph Laughlin, of St. Louis, for respondent.

NORTONI, J.

This is a suit under the statute by the wife against her husband for maintenance; but the appeal here relates alone to the allowance of suit money and expenses incident to the litigation. On a trial of the maintenance suit, the court found the issue, and gave judgment for plaintiff. By this judgment plaintiff was awarded $100 per month for the support of herself and minor child. No appeal was perfected from the judgment; but subsequent litigation ensued between the parties in an endeavor to enforce the payment of the installments for maintenance so decreed.

It appears defendant transferred his property to his father, in fraud of his wife, and to the end of defeating her judgment for maintenance. Because of this, a suit was instituted in equity by plaintiff against defendant and his father to set aside such fraudulent conveyance, and sequester defendant's property, to the end of compensating the decree for maintenance. This suit was finally determined by our Supreme Court, and is reported under the title of Pickel v. Pickel, 243 Mo. 641, 147 S. W. 1059. By its decree in the maintenance case, that is, the instant case, the court reserved power to make such further orders in the premises touching the controversy as should appear to be meet and proper. The statute (section 8295, R. S. 1909) authorizes this course.

Subsequently plaintiff filed her motion in the maintenance case for an allowance of suit money and expenses of the litigation against her husband, and upon a hearing the court awarded the same to her. It is from the order and judgment on this motion for suit money that the present appeal is prosecuted by defendant. From what has been said, it appears the appeal is prosecuted from a judgment for suit money given on a motion in the maintenance case. This being true, it is entirely clear no right of review obtains here for the reason defendant saved no exception to the ruling of the court on such motion. Moreover, the motion is not preserved in the bill of exceptions.

In such cases an appeal is allowed from a ruling on a motion in the case, because it is final, and determines the question at issue as though in a separate and distinct proceeding, but, nevertheless, an adjunct to the principal cause. See Steele v. Steele, 85 Mo. App. 224; State ex rel. v. Seddon, 93 Mo. 520, 6 S. W. 342. But, though such be true, the appeal is not from the final judgment. On the contrary, it is from the ruling on the motion in the case, and therefore presents a matter of exception. Steele v. Steele, 85 Mo. App. 224; Curtis v. Curtis, 54 Mo. 351; In re Howard Estate, 128 Mo. App. 482-490, 106 S. W. 116. Indeed, where the question arises on a motion in the case, it may not be reviewed on appeal in any instance unless an exception appears to have been saved to such ruling. See Lilly v. Menke, 92 Mo. App. 354; Graff v. Dougherty, 139 Mo. App. 56, 120 S. W. 661; Bateson v. Clark, 37 Mo. 31. It is therefore essential that both the motion itself, upon which the ruling is made, and the exception to the ruling should be preserved in the bill of exceptions as a prerequisite to review on appeal. See Graff v. Dougherty, 139 Mo. App. 56, 120 S. W. 661.

By the command of the statute (section 2081, R. S. 1909), the appellate court is precluded from reviewing any exception which shall not have been expressly decided by and saved in the trial court. This arbitrary rule of the statute is one which may not be evaded nor escaped through the operation...