State v. Calhoun

• Decision Date: 08 July 1921
• Docket Number: No. 22893.,22893.
• Citation: 232 S.W. 1038
• Parties: STATE ex rel. KRANKE v. CALHOUN, Circuit Judge, et al.
• Court: Missouri Supreme Court

232 S.W. 108

STATE ex rel. KRANKE v. CALHOUN, Circuit Judge, et al.

No. 22893.

Supreme Court of Missouri, in Banc.

July 8, 1921.

Proceeding by the State, on the relation of William Kranke, to prohibit John W. Calhoun, Judge of the Circuit Court of the City of St. Louis, from proceeding to hear and determine a motion on behalf of Marguerite Kranke for alimony pendente lite. Preliminary rule quashed (227 S. W. 1080), and proceeding certified to Supreme Court. Preliminary rule vacated.

Greensfelder & Levi and H. C. Whitehill, all of St. Louis, for relator.

John B. Reno, of St. Louis, for respondents.

DAVID E. BLAIR, J.

This case has been certified to this court by the St. Louis Court of Appeals. Preliminary rule in prohibition issued out of that court against respondent as judge of the circuit court of the city of St. Louis. On final hearing the St. Louis Court of Appeals vacated its preliminary rule, and the case was certified here because that court's opinion was in conflict with certain decisions of the Kansas City Court of Appeals. The able and exhaustive opinion written in the case by Becker, J., is before us and we quote same in full. Said opinion is reported in 227 S. W. 1080:

"This is an original proceeding in prohibition, seeking to restrain and enjoin the defendant judge, in the case of Marguerite Kranke, Plaintiff, v. William Kranke, Defendant, an action for divorce, from proceeding to hear and determine plaintiff's motion for alimony pendente lite and suit money pending appeal; said motion having been filed by plaintiff in the trial court after an appeal had been taken by defendant in the cause from the judgment granting plaintiff a divorce, but during the same term at which the appeal had been allowed. A preliminary rule in prohibition has heretofore been issued in this case.

"Relator's petition sets up that on January 2, 1920, a suit for divorce was filed by Marguerite Kranke, as plaintiff, and against William Kranke (relator herein), defendant; that said cause was in due course assigned for hearing to the division of the circuit court presided over by the respondent judge; that after a hearing of the cause the court granted a decree of divorce to the plaintiff, Marguerite Kranke, together with restoration of her maiden name and $125 per month alimony, and an additional $200 for attorney's fees, and ordered the defendant to give bond to secure the same; that a motion for new trial filed by defendant was overruled on August 9, 1920, and that on August 12, 1920, during the same term of court, the defendant filed his affidavit for appeal, and his appeal was allowed to the St. Louis Court of Appeals, and the defendant allowed until January 1, 1921, to file his bill of exceptions, and was further granted ten days after said June, 1920, term of said circuit court to file an appeal bond in the sum of $2,000; that on August 13, 1920, defendant's appeal bond was duly filed, presented, and approved; that on September 20, 1920, at and during the same term of said circuit court, plaintiff, Marguerite Kranke, filed a motion for alimony pendente lite and suit money pending appeal, which said motion was duly placed upon the law docket of the said circuit court. Said motion, after the usual averments as to her obtaining the decree and the allowance of the appeal to the defendant in the case, states: `That she is wholly destitute of means with which to support herself during the pendency of this appeal; that the defendant's income is in excess of $300 a month, and that he is possessed of property of the value of $30,000; that said income and said property are ample to enable defendant to advance to this plaintiff such sum or sums as may be necessary to enable her to support herself properly during the pendency of said appeal, to pay the expenses incident thereto, and to employ counsel to represent her in said appeal. Wherefore plaintiff prays for an order of court requiring defendant to pay her such sum or sums of money as may be necessary to enable her to maintain herself properly during the pendency of said appeal, to employ counsel, and to defray any other expenses that may be needed incident thereto.'

"Relator's petition further states that thereafter, on October 8, 1920, he filed his motion to strike from the files said motion of the plaintiff for alimony pendente lite and suit money pending appeal, on the ground that the circuit court was without jurisdiction to hear said motion, for the reason that it appeared from the face of the record that the court is without jurisdiction and that the sole jurisdiction of said cause was in the St. Louis Court of Appeals; that on November 1, 1920, said motion to strike from the files was overruled; and that plaintiff's motion for alimony pendente lite and suit money pending appeal has been regularly placed upon the law docket of the said circuit court and has been set for hearing on Friday, November 12, 1020. "Respondents, for their return, filed a demurrer, setting out that the relator's petition does not state facts sufficient to constitute a cause of action in prohibition.

"We have thus before us for determination the sole question as to whether or not the circuit

[232 S.W. 1039]

court, in an action for divorce, in which the wife has been granted a decree of divorce, and an appeal from said judgment has been taken by the husband, has jurisdiction to hear and determine a motion for alimony pendente lite and suit money pending appeal, filed during the term in which the decree of divorce has been granted the wife, but after an appeal has been allowed the husband.

"The relator urges that our Supreme Court has decided that the circuit court is without jurisdiction and cites in support of this contention State ex rel. Gercke v. Seddon, 93 Mo. 520, loc. cit. 522, 523, 6 S. W. 342, and State ex rel. Clarkson v. St. Louis Court of Appeals, 88 Mo. 135. It may be conceded that there is language used in each of the said cases to the effect contended for by relator. However, in the later case of State ex rel. Dawson v. St. Louis Court of Appeals (State v. Rombauer) 99 Mo. 216, loc. cit. 222, 12 S. W. 661, our Supreme Court, in the course of the opinion, said:

"`Now to determine whether the Court of Appeals may, in directing a decree of divorce, attach a condition that the plaintiff, being the husband, must first pay all arrears of alimony pendente lite, it is necessary to see whether the circuit court has that power. The circuit court may decree alimony pending the suit for divorce in all cases where the same would be just, whether the wife be plaintiff or defendant, and enforce such order in the manner provided by law in other cases. R. S. 1879, § 2179. Under our ruling it is the only court which can make the order, whether the case be pending in the circuit court or appellate court, though the order when made may be reviewed on appeal. State ex rel. v. Court of Appeals, 88 Mo. 135; State ex rel. v. Seddon, 93 Mo. 520.'

"We have carefully considered each of these cases, having in mind that the last previous ruling of our Supreme Court on any question of law or equity is conclusive upon the Courts of Appeals by virtue of the constitutional mandate, and have come to the conclusion that what was said in each of these cases germane to the question before us must be viewed in the light of obiter dicta, thus leaving the question one that has not been directly ruled upon by our Supreme Court.

"Section 2375, Revised Statutes of Missouri 1909, relating to alimony and maintenance, among other things, provides: `* * * The court may decree alimony pending the suit for divorce in all cases where the same would be just, whether the wife be plaintiff or defendant, and enforce such order in the same manner provided by law in other cases.'

"The fundamental object, as we interpret the language of section 2375, Revised Statutes of Missouri 1909, is to provide the wife, at all times while the suit for divorce is pending, a forum in which she may make her application for alimony and suit money, and have the same determined upon hearing upon its merits, thus assuring the wife, where need and the circumstances require, the necessary funds with which to conduct her case, whether she be plaintiff or defendant, appellant or respondent. In other words, the Legislature evidently intended that the wife should at all times, so long as a suit for divorce is pending, be assured of an opportunity to prosecute or defend her case until final judgment in the matter is entered.

"It has long since been definitely settled that the circuit court is the only court which can make an order allowing alimony pending the suit. State ex rel. Clarkson v. St. Louis Court of Appeals, 88 Mo. 135; State ex rel. Gercke v. Seddon, 93 Mo. 520, 6 S. W. 342; State ex rel. Dawson v. St. Louis Court of Appeals (State v. Rombauer) 99 Mo. 216, 12 S. W. 661. Can it be said that, when an appeal has been taken from the judgment of the circuit court, upon the merits of the controversy involved in a divorce proceeding, that the case is no longer pending? We think not. And when we consider the fact that an appeal from a decree in a divorce suit invests the appellate court solely with jurisdiction to hear and determine the cause upon the record as made up in the circuit court, and that such appeal does not carry with it for review the action of the circuit court upon the allowance or disallowance of a motion for alimony and suit money pending an appeal, it seems plain to us that there remains in the circuit court jurisdiction to entertain a motion for allowance of alimony and suit money pending the appeal after the appeal has been taken from the judgment on the merits. This view is sustained by what has been said by our Supreme Court in a very recent opinion in banc in which it was directly held that in an action for divorce the allowance of suit money pending an appeal was a separate and distinct order after final judgment,...