Pilkington v. Pilkington

• Decision Date: 04 May 1936
• Docket Number: No. 18681.,18681.
• Citation: Pilkington v. Pilkington, 93 S.W.2d 1068, 230 Mo.App. 569 (Mo. App. 1936)
• Parties: ALBIN S. PILKINGTON, RESPONDENT, v. JULIET WOOD PILKINGTON, APPELLANT.
• Court: Missouri Court of Appeals

93 S.W.2d 1068

ALBIN S. PILKINGTON, RESPONDENT, v. JULIET WOOD PILKINGTON, APPELLANT.

No. 18681.

Kansas City Court of Appeals. Missouri.

May 4, 1936.

Appeal from Circuit Court of Jackson County. — Hon. Albert A. Ridge, Judge.

AFFIRMED.

James B. Nourse for respondent.

Flavel Robertson and Kenneth I. Fligg, for appellant.

REYNOLDS, J.

The respondent, Albin S. Pilkington, as plaintiff, on August 8, 1935, filed his petition in the Circuit Court of Jackson County at Kansas City for divorce from the appellant, Juliet Wood Pilkington, as defendant.

The petition charges as ground for divorce that the defendant, wholly disregarding her duties as the wife of the plaintiff, had been guilty of and had offered plaintiff such indignities as to render his condition intolerable and that she had absented herself without a reasonable cause for the space of more than one year. It further charges that defendant had been guilty of such conduct toward him as to amount to mental cruelty and to render his condition in life intolerable.

The defendant failed to demur to the petition or to make any motion to require plaintiff to make it more specific or more definite and certain or to set forth more fully the conduct of defendant complained of as indignities but answered it — admitting the marriage and admitting that she had thereafter lived with plaintiff as her husband until during the year 1928; that there was born of the marriage one child at the time of the filing of the answer, seventeen years of age, named Jack Pilkington; that she was a resident of the State of Alabama — and denied each and every other allegation of the petition.

By an amended answer, she further set up that she had been at expense in the employment of attorneys and in attending the trial, approximating $350, which she had no means of defraying, and asked to be allowed such sum or such sum as the court might deem reasonable and just.

To defendant's amended answer, the plaintiff made reply, in substance a general denial.

Upon a trial had on December 30, 1935, at the November term of the court, defendant, at the conclusion of plaintiff's evidence, requested an instruction in the nature of a demurrer to the evidence, which demurrer the court granted; and, at the same time, the court gave plaintiff leave to file an amended petition to conform to the proof, adding that it would still grant the demurrer. Thereafter, on the same date, in pursuance of the leave granted by the court, plaintiff filed his first amended petition to conform to the proof, which more specifically set out the acts and conduct of the defendant constituting the indignities complained of and charged that the defendant had absented herself without a reasonable cause for the space of one year and more next before the filing of the original petition and that plaintiff and defendant had lived apart since the year 1928.

No objection was made to the filing of such amended petition or exceptions saved thereto by the defendant nor to the order of the court granting leave to the plaintiff to file such amended petition.

An examination of the amended petition and the record sufficiently shows that the allegations of the amended petition conform to the proof made upon the trial.

After the filing of the amended petition, the case was re-opened for the sole purpose of hearing defendant's evidence relating to her expense as set out in her answer; and she was called and sworn as a witness in her own behalf and testified with reference thereto.

At the conclusion of her testimony and of the case, the plaintiff requested that he be permitted to dismiss his petition without prejudice, which request, upon objection by defendant's counsel, was refused. The plaintiff thereupon took an involuntary nonsuit with leave to move to set the same aside, and the court entered judgment for defendant in the sum of $150 for expense money.

Thereafter, on December 31, 1933, at the same term of court, plaintiff filed his motion to set aside the involuntary nonsuit taken with leave, upon grounds set forth in said motion. Thereafter, on the same date, plaintiff filed his motion for a new trial upon practically the same grounds as those set forth in his motion to set aside the involuntary nonsuit, except that, in said motion for new trial, it was further alleged that the judgment was against the evidence, the weight of the evidence, and the law under the evidence and that the judgment of the court was for the wrong party and the expenses allowed were excessive.

Thereafter, on January 4, 1936, at the same term of court, defendant refiled, as her answer to the plaintiff's amended petition, her amended answer filed to the original petition, to which answer plaintiff again filed reply.

Thereafter, on January 10, at the same term of court, plaintiff's motion to set aside the involuntary nonsuit was sustained; and, likewise, plaintiff's motion for a new trial was at the same time sustained and a new trial ordered.

From the orders of the court sustaining plaintiff's motion to set aside the involuntary nonsuit and sustaining the plaintiff's motion for a new trial and granting a new trial, the defendant prosecutes this appeal.

Plaintiff and defendant were married during the year 1908 at Lexington, Kentucky, where they afterward resided until the year 1914, when they moved to the State of Alabama where for a time they lived and resided on a plantation. Defendant became desirous of entering the hotel business, with the result that she leased a hotel in Uniontown, Alabama, which she later purchased, into which she and plaintiff removed as their home; and she undertook its management and operation. The plaintiff assisted her in many substantial ways, although he continued to operate his plantation.

Upon moving into the hotel, plaintiff and defendant occupied as their living quarters two adjoining rooms with a connecting door between. For a while, everything moved along agreeably. However, after a time, defendant began gradually to assume a changed attitude toward plaintiff and began to visit indignities of one character and another upon him. The record shows that she was guilty of unmerited contemptuous conduct toward him, amounting to a species of mental cruelty. She was guilty of open association with another man by the name of Wiley, who was a frequent patron of the hotel, by which association she was brought into disrepute in the community and plaintiff was sorely humiliated. She forced plaintiff to vacate his room and had Wiley occupy the same while at the hotel. She refused to speak to plaintiff for weeks at a time when he was around and treated him with great incivility. She refused to wear the wedding ring he had given her and refused to use his name. She left the dining table when he came to it and refused to eat at the table with him. She was heard to complain to him that she did not want him around the hotel and that she wanted him to take his things away and to stay away. The evidence shows that she was upon very friendly terms with Wiley, made trips out with him in a car at various times, and on one occasion remained out with him as late as midnight or one o'clock in the morning. She was in the habit of meeting him at different places and spending as much time with him as possible when he was stopping at the hotel, and she gave him every attention.

It is unnecessary here to set out in detail the evidence introduced on the trial.

OPINION.

1. The defendant complains of the action of the court in permitting the plaintiff to file his amended petition to conform to the proof at the close of the case and in sustaining plaintiff's motion to set aside the involuntary nonsuit taken by him at the close of the case, after the court had sustained a demurrer to the evidence. She contends that the amended petition substantially changed the plaintiff's cause of action from that stated in the original petition and that the action of the court in permitting it to be filed was erroneous.

The defendant is not now in any position to urge error in this court upon the part of the court below in permitting the plaintiff to file his amended petition. Such contention is not now open to her in this court.

It is the established rule that an objection to the filing of an amended petition should be made when leave to file the same is asked or granted and that, in order to avail himself of error in the filing of an amended petition by a plaintiff, the defendant should stand on the rule. He waives the objection by answering such amended petition or going to trial thereon. [Lee v. W.E. Fuetterer Battery & Supplies Co., 323 Mo. 1204, 23 S.W. (2d) 45.]

The record herein fails to show that defendant made any objection to the order of the trial court granting leave to plaintiff to file his amended petition or that she filed any exceptions to the making of any such order. It likewise fails to show any objection by defendant to the filing of the amended petition when filed or any exceptions to the action of the court in permitting it to be filed; but, on the other hand, the record shows that the defendant, without any objection to said...