State ex rel. Dawson v. The St. Louis Court of Appeals
| Decision Date | 21 December 1889 |
| Citation | 12 S.W. 661,99 Mo. 216 |
| Parties | The State ex rel. Dawson v. The St. Louis Court of Appeals |
| Court | Missouri Supreme Court |
Writ denied.
Alex. Martin for petitioner.
(1) The supreme court has a general superintending control over all inferior courts. It also has the power to issue all original remedial writs, and to hear and determine the same. Const art. 6, sec. 3. (2) The court of appeals had no authority to attach a condition to the exercise of its appellate power requiring the petitioner to comply with an order not before the court. (3) The actual wrong complained of, and for which relief is sought here, is the judgment nisi of the court of appeals, requiring him to pay into said court, or into the lower court, about eleven hundred and fifty dollars for the support of the defendant after she had been finally adjudged guilty. When it conclusively appears at any time in a divorce case that the wife is guilty, that is the end of all her rights for the alimony or support which divorce courts are empowered to give. Perry v. Perry, 2 Barb. Ch. 285; Scott v. Scott, 17 Ind. 309; Krause v Krause, 23 Wis. 354; Porter v. Porter, 41 Miss 116; Snyder v. Snyder, 3 Barb. 64; Jones v. Jones, 2 Barb. Ch. 146; O'Haley v. O'Haley, 31 Tex. 502; 2 Bishop M. & D. [6 Ed.] secs. 398, 416; Keats v. Keats, 1 Swabey & T. 334; Wagner v. Wagner, 34 Minn. 441; Newman v. Newman, 69 Ill. 167; Wilde v. Wilde, 2 Nev. 306; Chestnut v. Chestnut, 77 Ill. 346. (4) If the court of appeals was without authority to attach the original condition relating to alimony to their judgment, or if their construction, holding that the order of alimony continued after final adjudication of the wife's guilt, is erroneous, then the court of appeals is without jurisdiction in adding to the original order an amount which it did not call for, and it should be restrained from enforcing such additional sum in any manner whatever, either by compelling the petitioner to pay into the court of appeals, or by ordering the circuit court to adjudge it against him, or to enforce its collection.
D. H. McIntyre and Zach. J. Mitchell for respondents.
(1) The remedy here sought, by which to partially avoid the judgment of the court of appeals, can only be exercised against respondents when they transgress their constitutional jurisdiction, and not where appeal does not lie or for mere error of judgment, if any there be. (2) The question as to whether or not such construction so adjudged by them is correct, or not, is, unless such constitutional or statutory authority is therein transgressed, eliminated from the case. (3) The statute, common laws, ecclesiastical and equity authorities of other states and countries, as cited by counsel for complainant, are not relevant to the issue. No statutory case is cited pretending to define a statute law, such as set out in said Revised Statutes, 1879, section 2179. The common and ecclesiastical law authorities can certainly not be relied upon to interpret a statute law which was evidently enacted to avoid, or change, such common and ecclesiastical law doctrines and precedents. (4) Complainant, by his petition herein, is in law, as well as in fact, seeking to avail himself of an appeal, without any security for costs, or to the defendant for the judgment against him; when no appeal, even with bond, can lie.
Prohibition.
-- This is an original proceeding in this court by prohibition against the judges of the St. Louis court of appeals, to restrain them from making a threatened order or judgment in a cause now pending in that court, on an appeal from the circuit court of St. Louis county, wherein the present relator, James Dawson, is plaintiff, and Eva Dawson is defendant and the appellant.
The history of that case, so far as important to a disposition of this one, is this: James Dawson commenced the suit, which was for divorce, in February, 1885. The circuit court, on the first of June, 1885, made the following order: "It is ordered that the plaintiff pay to defendant for her separate maintenance of self and child, during the pendency of this suit, the sum of fifty dollars per month, on the first day of each and every month, commencing on the first day of June, 1885; also the sum of one hundred dollars to and for the use of counsel." Thereafter the defendant made affidavit of prejudice against the regular judge, and the parties agreed upon a special judge, who heard the evidence, and, in December, 1885, rendered judgment dismissing the petition and cross-bill.
The plaintiff appealed, and, on May 11, 1886, the St. Louis court of appeals reversed the judgment, and directed the circuit court to enter up a decree of divorce in favor of the plaintiff, adding, however, these words: "the plaintiff first paying to the defendant, or into court for her use, all arrearages, if any, in the alimony heretofore awarded to her by the trial court." No exceptions had been taken to the order of the circuit court, allowing alimony pendente lite, but a suggestion had been made in the court of appeals that plaintiff was two months in arrear in the payment of alimony at the date of the judgment of reversal.
The regular judge of the circuit court, on the presentation of the mandate of the court of appeals, entered up a judgment of divorce in favor of the plaintiff, and the defendant appealed. This judgment of the circuit court was reversed for the sole reason that it should have been entered by the special judge. This second judgment of reversal contained the same directions to the trial court as did the former one.
On June 22, 1888, the special judge heard the cause, found that the alimony had been paid as he construed the former order, and gave judgment for divorce in favor of the plaintiff. The defendant again appealed to the court of appeals.
It appears that the plaintiff paid the fifty dollars per month, not only to the date of the first judgment of the circuit court, dismissing the petition and cross-bill, but to May 11, 1886, the date at which the court of appeals rendered the first judgment of reversal, and by which it was held that the plaintiff was entitled to a decree of divorce; but he made no further payments of alimony. The sole question on the third appeal was, whether he should have been required to pay the alimony pendente lite down to the date of the last judgment entered by the special judge on June 22, 1888. The court of appeals reached the conclusion, after two arguments, that he should, and entered a judgment requiring the plaintiff to pay into that court alimony pendente lite to and including the month of June, 1888, otherwise the decree of the trial court would be reversed, and the case remanded with directions to enter a decree of divorce in favor of the plaintiff, but with the addition that plaintiff be adjudged to pay the defendant the arrears of alimony above named.
The relator contends: First, that the order of the circuit court for the payment of alimony pendente lite terminated with the judgment of the circuit court, made on December 23, 1885, dismissing the petition and crossbill, and did not contemplate the payment of such alimony pending the appeal in the court of appeals; second, that under no construction can it be held to extend beyond May 11, 1886, at which date the court of appeals adjudged the defendant the guilty party, and the plaintiff entitled to a decree; third, that the court of appeals is without jurisdiction to decree alimony pendente lite, and, under the pretense of construing the order of the circuit court, has usurped jurisdiction over the matter of alimony, and, unless restrained, will carry into effect its last judgment and make the payment of eleven hundred and fifty dollars a condition to a decree of divorce.
Our jurisdiction to issue the writ of prohibition is invoked by authority of section 3,...
To continue reading
Request your trial