State ex rel. Gercke v. Seddon
| Decision Date | 19 December 1887 |
| Citation | 6 S.W. 342,93 Mo. 520 |
| Parties | The State ex rel. Gercke v. Seddon, Judge |
| Court | Missouri Supreme Court |
Peremptory writ awarded.
C. A Schnake and M. Kinealy and Jas. R. Kinealy for relator.
The order for alimony pending the appeal is for alimony from month to month, and is clearly erroneous. Under the unwritten law continuing alimony was only from year to year. 2 Bish. on Mar. & Div., sec. 427. Under the statute alimony should be from year to year. The order in this case is a final one and one from which an appeal lies. R. S., sec. 3710; Hecht v Hecht, 28 Ark. 92; Mitchell v. Mitchell, 20 Kan. 665; Lewis v. Lewis, 20 Mo.App. 546; Whitsett v. Whitsett, 8 B. Mon. 50; Jenkins v Jenkins, 91 Ill. 167; Whitmore v. Whitmore, 49 Mich. 417; Krause v. Krause, 23 Wis. 354. The court will weigh the evidence in divorce cases and the citizen is entitled to a review of the findings on the evidence before the trial court. Miller v. Miller, 14 Mo.App. 418.
Muench & Cline for respondent.
The matter of the allowance of alimony, pendente lite, is wholly in the jurisdiction and discretion of the circuit court. Original and appellate jurisdiction is denied to the appellate court. State ex rel. v. Court of Appeals, 88 Mo. 138; Lewis v. Lewis, 20 Mo.App. 546. The allowance of alimony pending an appeal is founded both on justice and humanity. It is not an order involving the merits of the controversy, but a simple act of common right, that the wife may not be starved into submission by having the family supplies and means of support withdrawn from her during the suit for a dissolution of the marriage. Bish. on Mar. & Div. [6 Ed.] sec. 387; Wyatt v. Wyatt, 6 P. 228, and note ad fin. The relator has already applied to the chief justice of this court for an appeal, in accordance with Revised Statutes, section 3714, and the application was justly denied. Byrne v. Harbison, 1 Mo. 225; State ex rel. v. McAuliffe, 48 Mo. 112; Railroad v. Franks, 55 Mo. 325. When a party has a remedy by appeal, or writ of error, mandamus will not lie. High on Extra. Leg. Rem., secs. 188, 190; Blecker v. St. Louis Law Com'r, 30 Mo. 111; Williams v. Judge, 27 Mo. 225; State ex rel. v. Lubke, 85 Mo. 338; State ex rel. v. Engelmann, 86 Mo. 561; Sheridan v. Fleming, ante, p. 321. The order complained of was not a final order, and no appeal lies. Wyatt v. Wyatt, supra.
Mandamus.
The question in this case arises on the demurrer of defendant to the alternative writ of mandamus issued herein. In an action for divorce in the St. Louis city circuit court by Augusta Gercke, wife of relator, against him, she obtained a final decree of divorce and for alimony in the gross sum of six thousand dollars, and an allowance of one hundred and seventy-five dollars, for attorney's fee, whereupon relator filed his motion for a new trial and in arrest of judgment, which being overruled, he filed his bill of exceptions, and at the same term, and within time, his affidavit and bond for an appeal; the bond was approved and the appeal granted. In the order granting the appeal was embodied the further order that relator pay to the plaintiff, as alimony pending his appeal, thirty-five dollars per month during the pendency of such appeal. This last order the relator moved to set aside; his motion was overruled; he excepted, and filed his bill of exceptions, affidavit, and bond for an appeal from said order; the court approved the bond, but refused to grant him an appeal from this last order allowing the plaintiff monthly alimony, pendente lite his appeal in this court. And he now seeks to compel the allowance of such appeal by mandamus.
The wife is entitled to alimony and suit-money so long as the litigation continues. Bishop on Mar. & Div., 384, 387. The circuit court was fully empowered to decree alimony pending the suit for divorce, and enforce such order in the manner provided by law. R. S., 1879, sec. 2179. The decree having been appealed from, the suit is still pending, and the circuit court had power to make the order allowing alimony pending the suit in the appellate court, pending the application for an appeal in the divorce suit, and before such appeal was perfected. State ex rel. v. St. Louis Court of Appeals, 88 Mo. 135. It was the only court having jurisdiction to make such order, and it would have had no such jurisdiction after the appeal had been perfected. State ex rel. v. Court of Appeals, supra; Lewis v. Lewis, 20 Mo.App. 546. The power of the court to order and enforce an allowance for alimony pendente lite, although an adjunct of the action of divorce, is an independent proceeding standing upon its own merits, and in no way dependent upon the merits of the issues in the divorce suit, or in any way affected by the final decree upon those merits. It grows, ex necessitate rei, out of the relations between the parties to the controversy, and has nothing to do with the merits of that controversy. The order making such allowance in this case was a final and definite order disposing of the merits of that proceeding in the circuit court, and the relator was entitled to make his appeal. R. S. 1879, sec. 3710.
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