Searcy v. Searcy

• Decision Date: 05 March 1917
• Docket Number: No. 12312.,12312.
• Citation: 196 Mo. App. 311,193 S.W. 871
• Parties: SEARCY v. SEARCY.
• Court: Missouri Court of Appeals

193 S.W. 871

196 Mo. App. 311

SEARCY v. SEARCY.

No. 12312.

Kansas City Court of Appeals. Missouri.

March 5, 1917.

Rehearing Denied April 2, 1917.

Appeal from Circuit Court, Jackson County; C. A. Burney, Special Judge.

"Not to be officially published."

Suit by Robert L. Searcy against Anna Searcy. From a judgment for plaintiff, defendant appeals. Reversed.

Rees Turpin, of Kansas City, for appellant. John M. Cleary and Mord. M. Bogie, both of Kansas City, for respondent.

TRIMBLE, J.

Herein a husband sued for divorce, which the trial court awarded. The wife has appealed.

The suit was instituted April 14, 1915. The petition alleged that the parties were married August 28, 1901, and lived together till the ____ day of September, 1907, when the husband left his wife, being compelled to do so by her cruel and barbarous treatment, and has ever since remained away from her. The petition further alleged that the wife was guilty of indignities such as to render his condition intolerable, and was guilty of such cruel and barbarous treatment as to endanger his life; that she continually nagged at, quarreled, and fussed with him so as to render life unendurable, the wife having an ungovernable temper and flying into a rage on the slightest provocation or upon no provocation. The only specifications or concrete instances of the wife's conduct stated in the petition was that on one occasion she threatened to strike him with a smoothing iron, and would have done so had he not gotten out of the way.

The answer was a general denial and an allegation that the husband deserted the wife on September 1, 1907, and that they had not lived together thereafter, together with a plea of res adjudicate, wherein the wife set up that after such desertion, her husband brought suit for divorce in the circuit court of Jackson county at Independence, upon the same charges and allegations as in the present suit, and the issues thereof were tried and a decree was rendered, finding for defendant and dismissing the petition, in January, 1909. No cross-bill or prayer for divorce was filed by the wife.

The parties were married in Wisconsin, and lived in Chicago for four years, and until 1905, when they moved to Kansas City, the husband taking a position with his mother, who was running a hotel. The wife says that they got along very well and happily while away from his folks. But the husband says his wife always quarreled and nagged at him; that he could do nothing to please her. The greater portion of his testimony consists of statements or conclusions to this effect. He does, however, specify several instances of her alleged treatment of him, namely, once when her boy got into some trouble with the other children at the hotel, and the husband, having witnessed it, did not tell her of it. When she learned of it she asked her husband, when he came home, "Why did you not tell me about Claude getting into that trouble?" Nothing else is told of her conduct on that occasion. Another time he says she was ironing, and threatened to hit him with the iron if he did not get out of the house. On another occasion he says he had been out as a musician playing at a dance given at the Country Club, and as the dance continued until 3 a. m., he did not get home until about 4 o'clock, and found her getting ready to go down in the basement to start up the furnace; and that when he offered to go down, she refused to accept the offer, saying, "I don't want any bum that stays out until 4 o'clock in the morning to do anything for me." His wife says that he would go out at night and not come back until the wee small hours of the morning, and sometimes he would not come home at all, and when he did he would not tell her where he had been. His wife says that on one of these occasions he came in just as she was going down to fix the furnace, and he told her to stay in bed, as he would fix it, but that she replied: "No, you won't; no man that stays out all night can shake the furnace for me." On another occasion the husband says his wife threatened to strike him with a curtain pole. In none of these instances does he set forth the circumstances under which the matter arose. He does not state the facts showing the setting in which the event occurred. So that his testimony was very little more than mere conclusions as to his wife's treatment of him.

But, however this may be, we think the wife's plea of res adjudicata should have been upheld, and will prevent plaintiff from obtaining the relief he has sought; and that her demurrer offered at the close of the evidence in chief should have been sustained.

It is conceded that he brought the prior divorce suit hereinbefore referred to, and that the judgment therein rendered was against him. Plaintiff also admitted that everything he testified to against his wife in the present suit happened before the other suit was brought, with the exception of a suit for alienation brought by the wife against his mother and relations, which will be referred to later. He also admitted that he knew of all the acts complained of against his wife before the former suit was brought, and that he testified in said former trial as to all of said acts, with the possible exception of the curtain pole incident. The petition in the former case was introduced in evidence, and it is practically the same as the petition in this case. Under such circumstances, unless something has occurred since the former judgment was rendered to create new or additional grounds for divorce, it would seem that the former judgment was res adjudicata in this suit. Richardson v. Stowe, 102 Mo. 33, 44, 14 S. W. 810; Johnson v. United Railways Co., 243 Mo. 278, 289, 147 S. W. 1077; Hines v. Hines, 243 Mo. 480, 495, 147 S. W. 774; Coleman v. Dalton, 71 Mo. App. 14, 21, 22; Lynch v. St. Louis, etc., R. Co., 180 Mo. App. 169, 174, 168 S. W. 224; Cantwell v. Johnson, 236 Mo. 575, 603, 139 S. W. 365; Emmert v. Aldridge, 231 Mo. 124...