Smith v. Smith
| Decision Date | 04 January 1944 |
| Docket Number | No. 26346.,26346. |
| Citation | 176 S.W.2d 647 |
| Parties | SMITH v. SMITH. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Louis County; E. McDonald Stevens, Special Judge.
"Not to be reported in State Reports."
Suit for separate maintenance by Kate Smith against John Smith. Judgment was entered for defendant, plaintiff's motion for new trial was granted, and from an order subsequently made quashing the execution issued upon a consent order for payment of temporary alimony and counsel fees, plaintiff appeals.
Reversed and remanded.
Sigmund M. Bass, of St. Louis, for appellant.
Edwin Rader, of Clayton, for respondent.
BENNICK, Commissioner.
This is an appeal by the plaintiff wife from an order of the Circuit Court of St. Louis County sustaining the motion of the defendant husband to quash an execution issued upon a consent order for the payment of temporary alimony and counsel fees pending the determination of a suit for separate maintenance brought by plaintiff against defendant.
Under the terms of such order, defendant was required to pay $75 a month as alimony pendente lite, and $50 for counsel fees.
The case had been assigned to Division No. 3 of the court, and in due course came on for a trial on the merits, resulting in the entry of a judgment in favor of defendant, dismissing plaintiff's petition.
Plaintiff in due time filed her motion for a new trial; and while the same was pending undisposed of she sued out an execution upon the consent order theretofore entered at the outset of the case for the payment of alimony pendente lite and counsel fees. It was admitted, incidentally, that defendant had made all payments called for by such consent order up to the time of the court's decision of the separate maintenance suit in his favor, so that the amount for which plaintiff sought to have execution was only the sum allegedly due from defendant as alimony from the time of the court's entry of judgment against her in the separate maintenance suit up to the time of the issuance of the execution.
Upon the issuance of such execution, defendant filed his motion to quash the same upon the ground that the consent order for the payment of alimony pendente lite had immediately abated and become of no further force and effect upon the court's decision of the separate maintenance suit in his favor, and that there was consequently no longer a basis in law for suing out the execution.
The court took such motion under advisement along with plaintiff's motion for a new trial which was still pending undisposed of, and thereafter, by contemporaneous orders, overruled defendant's motion to quash the execution and sustained plaintiff's motion for a new trial in the separate maintenance suit. At the same time the judge of Division No. 3 disqualified himself in the cause, and transferred the same to Division No. 4 for all further proceedings in the case.
Upon the transfer of the cause to Division No. 4, defendant filed a second motion to quash the execution upon the ground that the consent order for the payment of alimony pendente lite had abated upon the court's decision of the separate maintenance suit, and was no longer in force and effect irrrespective of the granting of a new trial in the case. Having first overruled such motion, the court later, of its own accord, set aside its previous ruling and entered an order sustaining the motion ; and it is from such latter order that plaintiff's appeal has been taken in the usual course.
We see no escape from the conclusion that the court was in error in sustaining the motion to quash the execution.
Just as in the case of an action for divorce, an order for the wife's temporary support and suit money which is entered in connection with a suit for separate maintenance remains in effect until there is a final determination of the principal case on the merits. Such, indeed, is the very purpose of the order, which contemplates that the husband shall be compelled to provide his wife with the means to prosecute her suit to a final conclusion, at which time the question of her permanent maintenance will be necessarily adjudicated. If she prevails in her suit, the court will adjudge that such...
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Willis v. Willis
...to 'order a new trial,' which, if and when granted, leaves the case for trial de novo as though there had been no trial [Smith v. Smith, Mo.App., 176 S.W.2d 647, 649(3); Brayton v. Gunby, Mo.App., 267 S.W. 450, 452(5); Dierman v. Bemis Bros. Bag Co., 144 Mo.App. 474, 129 S.W. 229, 230(2), o......
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Gosnell v. Gosnell
...the judgment of July 28 was vacated on August 27, the case was left for trial de novo as though there had been no trial [Smith v. Smith, Mo.App., 176 S.W.2d 647, 649(3); Brayton v. Gunby, Mo.App., 267 S.W. 450, 452(5)], 'there was no basis for the entry of a judgment' [Porter v. Chicago, B.......
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Smith v. Smith, 32966
...allowances pendente lite cannot be made after final decree or dismissal, either in suits for separate maintenance, Smith v. Smith, Mo.App., 176 S.W.2d 647, or divorce cases. Beckler v. Beckler, 227 Mo.App. 761, 57 S.W.2d 687; Coons v. Coons, Mo.App., 236 S.W. 364; Creasey v. Creasey, 175 Mo......
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Schenberg v. Schenberg
...Temporary allowances pendente lite cannot be made after final decree or dismissal, either in suits for separate maintenance, Smith v. Smith, Mo.App., 176 S.W.2d 647, or divorce cases. Beckler v. Beckler, 227 Mo.App. 761, 57 S.W.2d 687; Coons v. Coons, Mo.App., 236 S.W. 364; Creasey v. Creas......