Rudd v. Rudd

• Decision Date: 11 February 1929
• Citation: 13 S.W.2d 1082,223 Mo.App. 472
• Parties: ERNESTINE RUDD (NOW BEST), RESPONDENT, v. HARRY B. RUDD, APPELLANT. [*]
• Court: Kansas Court of Appeals

13 S.W.2d 1082

223 Mo.App. 472

ERNESTINE RUDD (NOW BEST), RESPONDENT, v. HARRY B. RUDD, APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

February 11, 1929

Appeal from the Circuit Court of Jackson County.--Hon. Willard P Hall, Judge.

AFFIRMED.

Judgment affirmed.

Cowgill & Popham, for respondent.

John B Pew and Burr N. Mosman for appellant.

LEE, C Lee, C., concurs. Trimble, P. J., absent.

OPINION

LEE, C.

This is an appeal from an order of the circuit court modifying a divorce decree in so far as it affected the custody of a minor child. Plaintiff obtained a divorce from defendant on the 24th day of December, 1924, and was awarded the absolute custody of a minor child, Doris Marie Rudd. Thereafter, the defendant filed a motion to modify the decree and by consent of the parties the court entered an order on the 21st day of December, 1926, by which it was provided that the defendant, his mother, Harritt Rudd, and his aunt, Elizabeth T. Barbee, or one of them should have the temporary custody of the child within Jackson county, Missouri, only, on Saturday of each week and also for four non-consecutive weeks each summer during the school vacation period. On the 8th day of April, 1927, the plaintiff filed a motion to modify the decree which, omitting signatures and verification, is as follows:

"Comes now the plaintiff herein and moves and requests this honorable court to modify and set aside the order of December 18, 1926, amending and modifying the order of December 24, 1924, and to grant plaintiff, as in said original order granted, the absolute and complete custody and control of Doris Marie Rudd, the minor daughter of the parties hereto, and for grounds thereof, your movant alleges and shows that there have been such changes in the relations, conduct, actions, position, abilities, feelings, station in life, desires, deserts, rights and entitlements of the parties hereto and those having interest in the custody of said child as to require said order for the best interests of said child and the parties and upon this your movant will ever pray the right to introduce evidence and for the relief herein sought.

"Wherefore, plaintiff prays the judgment of the court herein and for such further orders, decrees, modifications and judgments as shall in the judgment and discretion of this honorable court appear meet and just touching the rights of the parties and under all the facts and circumstances."

It appears from the record proper that on the first day of the June, 1927, term of court the following order was entered of record:

"Now on this day, comes plaintiff in person and by her attorney and comes defendant in person and by his attorney.

"Now this cause coming on for hearing upon plaintiff's motion to modify decree as to custody of Doris Marie Rudd, which said motion is by the court sustained and the custody of Doris Marie Rudd is awarded to the plaintiff.

"It is further ordered by the court that the defendant be allowed to see and visit said minor child at all reasonable times."

Thereafter, the defendant perfected an appeal and filed a bill of exceptions, but filed no motion for new trial. In this court the appellant attacks the motion to modify or petition for review on the ground that it fails to state facts sufficient to warrant the court's action in changing and modifying the decree. Appellant also complains that the evidence in support of the motion was wholly insufficient to warrant the order of the court. Respondent contends that the motion is sufficient after trial and that we may not review the evidence because no motion for new trial was filed.

We must first determine whether or not the allegations of the motion to modify the decree were sufficient to give the trial court jurisdiction to make the order that it did make. Such an instrument is sometimes called a petition to review and sometimes it is referred to as a motion. As a petition it was defective, because it pleaded nothing but conclusions. Nor is it any better as a motion, because our statute provides that all motions shall be accompanied by a written specification of the reasons upon which they are founded; and no reason not so specified shall be urged in support of the motion. [Section 1267, R. S. 1919.]

It therefore follows that the trial court might well have denied the respondent a hearing, because nothing but conclusions were pleaded. It is true that a pleading will often be held to allege facts although a witness would not be permitted to testify in the words of the pleading on the ground that the witness attempted to give his conclusions. Under our statute no party is required to state evidence in his pleading, nor is he required to disclose therein the means by which he intends to prove his case. [Section 1244, R. S. 1919.] It follows that a statement which would be regarded as the conclusion of a witness will often be regarded as the statement of an ultimate fact in a pleading. However, if the conclusion is so general that the opposing party cannot determine the nature of the charge against him from the face of the pleading or the motion, if the pleader merely alleges his conclusion that sufficient ultimate facts exist, the instrument charges conclusions of law and the allegations are insufficient.

It does not follow that a pleading which is thus defective will not support a judgment, nor that a motion thus defective will not support an appropriate order. Thus an answer which denies "each and every material allegation" of a petition may not be attacked for the first time after verdict, although it is plain that this pleads a conclusion of law. [Edmonson v. Phillips, 73 Mo. 57; Smith v. Lindsey, 89 Mo. 76, 1 S.W. 88.] It has many times been held that a general allegation of negligence is sufficient if it be not attacked before verdict. [Geninazza v. R. U. Leonori, etc., Co., 252 S.W. 417.] Likewise it has been held that an imperfection in a pleading which might have been remedied by an amendment or which might have been attacked by a motion to make more definite will not vitiate a judgment rendered thereon. [Haygood v. McKoon, 49 Mo. 77; Bowie v. Kansas City, 51 Mo. 464.]

And an issue raised upon the statement of a legal conclusion which presents the real point in controversy will be regarded as sufficient after verdict. [Ehrlich v. Mittelberg, 299 Mo. 284, 252 S.W. 671; Slaughter v. Slaughter, 106 Mo.App. 104, 80 S.W. 3; Jackson v. Railway, 80 Mo. 147.]

It is obvious that the allegations before us would be sufficient to support a judgment if they were contained in a petition. Although the pleader set forth nothing but conclusions, yet, those conclusions defectively set forth the very matters in issue.

The practice upon the trial of a motion is different from the practice upon proceedings under pleadings. The sufficiency of the allegation may be attacked orally. Furthermore, when a speaking motion is filed the general issue may be tendered by simply resisting the motion. No answer or other pleading to a motion is required. [42 C. J. 501.] Nevertheless, an irregularity in form, such as the failure to set forth the grounds of the motion, is deemed waived unless objection thereto is made at the first opportunity. [42 C. J. 479.] The failure of appellant to file a motion to make respondent's motion more definite is not, of itself, a waiver of the defects in the allegations. However, if appellant desired more particular information...