State ex rel. Stone v. Ferriss
| Decision Date | 15 January 1963 |
| Docket Number | No. 31426,No. 6,R,6,31426 |
| Citation | 364 S.W.2d 49 |
| Parties | STATE of Missouri ex rel. Forrest William STONE, Relator, v. Franklin FERRISS, Judge of the Circuit Court of St. Louis County, State of Missouri, Divisionespondent. |
| Court | Missouri Court of Appeals |
Charles M. Shaw, Claude Hanks, Clayton, for relator.
Forrest M. Hemker, St. Louis, for respondent.
This is an original action in prohibition. It is brought in this court to prohibit the respondent Judge from passing upon an affer-trial motion to award custody of children to the defendant in a divorce action. The motion was filed after judgment and after an appeal had been taken by the plaintiff, relator here, and a supersedeas bond had been approved and filed.
The following are the facts as they relate to the motion:
The relator Forrest William Stone brought suit for divorce against his wife, Dorothea Carla Stone. Dorothea Carla Stone in her answer denied the charges in the plaintiff's petition and sought a divorce on a cross-bill. She also pleaded a second count in which she asked that the children be awarded to her custody in the event a decree of divorce was denied to both parties.
The court found against the plaintiff on his petition for divorce and against the defendant on her cross-bill for a divorce. There was a finding for the defendant on Count II of her pleading awarding her the custody of the children, who were at that time, and had been prior to the suit for divorce, in the plaintiff-relator's custody.
After the decree and within time, the plaintiff filed his notice of appeal and posted a supersedeas bond in the sum of $5,000 approved by the court.
After the appeal and the posting of the supersedeas bond, the defendant in the divorce case filed a motion for alimony pendente lite, suit money, and attorney's fees. In the motion, in addition to the money sought, she requested that she be awarded custody of the children during the pendency of the appeal. The trial judge indicated that he was about to proceed to hear and determine the request for custody of the children pending the appeal, and the plaintiff below sought this writ.
We have but one question before us, and that is the jurisdiction of the trial judge to make such an order pending the appeal and after a supersedeas bond had been filed by the appealing plaintiff.
If the trial court had the power to order the appealing plaintif...
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