Sharpe v. Sharpe

• Decision Date: 17 November 1908
• Citation: 114 S.W. 584,134 Mo. App. 278
• Parties: SHARPE v. SHARPE.
• Court: Missouri Court of Appeals

114 S.W. 584

134 Mo. App. 278

SHARPE v. SHARPE.

St. Louis Court of Appeals. Missouri.

November 17, 1908.

Rehearing Denied December 29, 1908.

1. HUSBAND AND WIFE (§ 296)—SUIT FOR SEPARATE MAINTENANCE—CROSS-BILL—OBJECTIONS —WAIVER.

In a suit for separate maintenance, the wife waived every objection to the husband's cross-bill for a divorce by replying thereto, instead of demurring or moving to strike it, excepting the right to question the court's jurisdiction to decree a divorce on the cross-bill.

2. DIVORCE (§ 12)— COMMON-LAW JURISDICTION.

At common law jurisdiction to grant a divorce was only exercised where the marriage was void from the beginning.

3. DIVORCE (§ 9)—PROCEEDINGS—NATURE.

Procedure under Rev. St. 1899, c. 20 (Ann. St. 1906, pp. 1678-1689), relating to divorce, alimony, and custody of children, is special, and in a proceeding under the chapter the courts, or parties, by consent or otherwise, are powerless to ingraft on it any other action by way of counterclaim or otherwise not specially provided for therein.

4. HUSBAND AND WIFE (§ 286)—SEPARATE MAINTENANCE—PROCEEDINGS—NATURE.

Procedure under Rev. St. 1899, c. 51 (Ann. St. 1906, pp. 2375-2388), relating to wife abandonment and maintenance, is special and in a proceeding under that chapter the courts or parties, by consent or otherwise, are powerless to ingraft on it any other action, by way of counterclaim or otherwise, not specially provided for therein.

5. DIVORCE (§ 59)—JURISDICTION—HOW CONFERRED.

While parties to a divorce suit may by consent or appearance give the court jurisdiction of their persons, they cannot by consent or waiver confer jurisdiction of the res; jurisdiction of the subject-matter being acquirable only by the filing of a petition stating all the jurisdictional facts set forth in Rev. St. 1899, §§ 2922, 2924 (Ann. St. 1906, pp. 1681, 1682).

6. HUSBAND AND WIFE (§ 286)—SEPARATE MAINTENANCE—ACTION — CROSS-BILL FOR DIVORCE—PROPRIETY.

In a suit by a wife under Rev. St. 1899, c. 51 (Ann. St. 1906, pp. 2375-2388; Ann. St.

1906, §§ 4327, 4327a), for separate maintenance, the only issues triable are whether the husband has abandoned her without cause and neglects or refuses to support her, and hence a cross-action for divorce is improper in such suit; Rev. St. 1899, § 605 (Ann. St. 1906, p. 635), relating to counterclaims in ordinary actions, being inapplicable.

Appeal from St. Louis Circuit Court, Moses N. Sale, Judge.

Action by Lucie Sharpe against Fred A. Sharpe. From a judgment dismissing defendant's cross-bill, he appeals. Affirmed.

Boyle & Priest, for appellant. S. P. Bond, for respondent.

BLAND, P. J.

Plaintiff and defendant are husband and wife, and both reside in the city of St. Louis. Plaintiff brought suit for maintenance in accordance with the provisions of section 4327, Rev. St. 1899 (Ann. St. 1906, p. 2375). Plaintiff alleged in her petition that defendant had abandoned her without cause, and neglected and refused to support her. By his answer defendant admitted the marriage, but denied every other allegation of the petition. He also pleaded a cross-action for divorce, to which plaintiff filed a general denial. After hearing the evidence, the court dismissed plaintiff's petition, and granted defendant a divorce on his cross-action. On plaintiff's motion, the judgment dismissing her petition and awarding defendant a divorce was set aside and defendant's cross-action for divorce was dismissed, from which action of the court defendant appealed. None of the evidence is preserved in the record, and the sole question presented for decision is whether or no a cross-action for divorce can be grafted on the statutory action brought by the wife against her husband for maintenance. By filing her reply to the cross-action instead of demurring to it, or moving to strike it out, plaintiff waived everything she could as to the regularity or propriety of the cross-bill; that is, she waived everything except the right to question the jurisdiction of the court to decree a divorce on the cross-bill. The memorandum handed down by the learned trial judge shows he was of...