State v. Davis

• Decision Date: 29 April 1918
• Docket Number: No. 12098.,12098.
• Citation: 203 S.W. 654,199 Mo. App. 439
• Parties: STATE ex rel. TAUBMAN v. DAVIS et al.
• Court: Missouri Court of Appeals

203 S.W. 654

199 Mo. App. 439

STATE ex rel. TAUBMAN v. DAVIS et al.

No. 12098.

Kansas City Court of Appeals. Missouri.

April 29, 1918.

1. PLEADING — JUDGMENT ON PLEADINGS.

A motion for judgment on the pleadings is not a demurrer although partaking of some of its qualities.

2. DIVORCE — SEPARATE DOMICILE OF WIFE.

While the law regards the domicile of the husband as the domicile of the wife during cohabitation, the wife may for the purpose of establishing venue for a divorce suit, establish a residence separate from that of her husband; the law for such purpose recognizing that the wife has a separate existence, interest, and rights.

3. HUSBAND AND WIFE — UNITY OF PERSON.

In proceedings which from their very nature make a husband and wife opposite parties, the legal fiction of unity of person by marriage will not be followed to destroy the rights of either contrary to natural justice.

4. DIVORCE — SEPARATE DOMICILE OF WIFE.

In order to confer jurisdiction on the court in which a wife's suit for divorce is brought, it is not necessary that her right to a divorce be established beforehand.

5. DIVORCE — SEPARATE DOMICILE OF WIFE.

Evidence held to show a sufficient right in a wife to sue for divorce to establish her right to domicile for such purpose separate from that of her husband.

6. DIVORCE — "DOMICILE" — "RESIDENCE."

To create "domicile" or "residence" for the purpose of a divorce by a wife within meaning of Rev. St. 1909, § 2371, actual bodily presence and the freely exercised intention to remain there permanently or for an indefinite time are the only elements necessary, but such elements must concur.

7. AFFIDAVITS — PERSON ENTITLED TO TAKE — LAW PARTNER OF PLAINTIFF'S ATORNEY.

That a petition for divorce by the wife is verified before her attorney's law partner, as a notary public, does not invalidate it.

Original proceeding in prohibition by the State, on the relation of Birdie Taubman, against Samuel Davis and others, to prevent further action in a divorce suit. Provisional writ made permanent.

Aull & Aull, of Lexington, and Campbell & Ellison, of Kirksville, for relatrix. W. H. Chiles and Lyons & Ristine, all of Lexington, and John M. Cleary, of Kansas City, for respondents.

TRIMBLE, J.

This is an original proceeding in prohibition, brought by relatrix against her husband, Edwin M. Taubman, and Hon. Samuel Davis, as judge of the circuit court of Lafayette county, to prevent further action in a suit for divorce filed by said Taubman in said Lafayette court, the ground of relatrix's petition being that said Lafayette court is without jurisdiction to try the husband's divorce suit for the reason that at the time the same was filed relatrix had already brought suit for divorce in the circuit court of Adair county, and the same was, and is now, therein pending and undisposed of.

After the provisional writ was issued and the respondents had made return and relatrix had filed a reply thereto, the respondents filed a motion for judgment on the pleadings quashing the preliminary writ and dismissing the petition. This motion was .heard and disposed of by the court in an opinion by Johnson, J., November 27, 1916, wherein the motion was overruled. See State ex rel. Taubman v. Davis, 190 S. W. 964. No order making the provisional writ permanent was entered, however, and thereafter, upon respondents' application for the appointment of a commission to take testimony, Hon. Nathaniel M. Shelton was appointed, with directions to take testimony and report. This has been done, and the case has again been argued and submitted upon the question of whether relatrix is entitled to have the provisional writ made permanent. There may be some question whether the presentation of the aforesaid motion for judgment on the pleadings did not operate as a withdrawal of the return, a confession of the facts stated in relatrix's petition, and a supersession of the application for the appointment of a commissioner, so as to make the award of the permanent writ a necessary incident to the judgment overruling the motion. State ex rel. v. Barnett, 245 Mo. 99, 114, 149 S. W. 311; State ex inf. v. Vallins, 140 Mo. 524, 41 S. W. 887.

It would seem from the authorities just cited that, had the motion been a demurrer, such would certainly have been the proper course. But a motion for judgment on the pleadings is not a demurrer, although partaking of some of its qualities. Hodson v. McAnerney (Sup.) 192 S. W. 423. And as respondents were allowed to file their motion and have it considered and disposed of without any intimation that a disposal of same would result in the final disposition of the case, and since relatrix already had a motion for the appointment of a commissioner, this court, having overruled said motion for judgment on the pleadings, thereafter, upon respondents' application, appointed a commissioner and allowed the case to proceed to a hearing on the merits. And since all parties seem to have sought for, appeared, and participated in said hearing, and as we are able, after conceding to respondents a hearing on the merits, to reach a conclusion which, in result, is the same as if the provisional writ had been made permanent following the overruling of the motion for judgment on the pleadings, we need not now decide whether or not a judgment awarding the permanent writ should have followed the overruling of said motion, and therefore pass that question.

With one exception, possibly two, the facts involved in this litigation are undisputed and are set forth in Judge Johnson's opinion herein above cited. It is therefore unnecessary to repeat them here. And at this point it may be well to say that many of the contentions now urged by respondents were considered at that hearing and determined in that opinion, and consequently we will not enter into a consideration of them again.

The one question of fact, or possibly two, now in dispute between the parties, and to settle which a commissioner was desired to take testimony, has reference to the residence of relatrix at the time she brought her suit in Adair county. Had she obtained a residence there, within the meaning of section 2371, R. S. Mo. 1909, at the time she brought her suit, or did her residence, fixed by that of her husband, remain in Lafayette county? Did she have cause for separation from her husband so as to entitle her to create for herself a residence separate from his" This last question, it would seem, is, if any thing, but a subdivision or branch of the other question. As bearing upon the question of relatrix's residence at the time she brought her suit, the evidence taken before the commissioner shows: That prior to her marriage, relatrix had for 31 years resided with her parents at Kirksville in Adair county, but for a while just before her marriage she had been employed in Fulton, Mo., as matron of the State School for the Deaf. During this time, however, she, at all times and up to her marriage with Mr. Taubman, regarded Kirksville as her home and place of residence. That upon her marriage to Mr. Taubman she went with him to Lexington, Lafayette county, Mo., and resided there until December 17, 1915, a little over 3 years. That she left Mr. Taubman's house between 9 and 10 o'clock at night December 15, 1915, and went to the home of a neighbor lady and stayed there till the morning of December 17, 1915, when she left Lafayette county and returned to Kirksville in Adair county. That on the occasion of her leaving her husband's house at the above-named hour of night she was in her room with the door locked and her husband was over the transom endeavoring to get in. That about two weeks before' she left Mr. Taubman's house she had made up her mind to go to and make Kirksville her home and residence, and during this two weeks, although under the same roof with Mr. Taubman, they were not living together as man and wife. That when she left Lexington she did so with the fixed intention never to return, but to make Kirksville her home and her place of residence. That ever since her return to Kirksville she has continued to reside there and make it her home, having sought and obtained employment there as deputy recorder of deeds. That when she left Lexington for Kirksville she took none of her personal effects except the clothes she had on and a small hand bag; that she took no other articles because she was afraid to return to her husband's house for them, but that, through her attorneys, she later succeeded in having her clothing sent to her at Kirksville. That after reaching Kirksville with the intention of remaining there permanently and making it her home, she consulted her attorneys and brought her suit for divorce.

It is true that, flowing from the legal theory of an identity of person in husband and wife, the law regards the domicile of the husband as...