Stone v. Stone

• Decision Date: 17 November 1908
• Citation: 134 Mo. App. 242,113 S.W. 1157
• Parties: STONE v. STONE.
• Court: Missouri Court of Appeals

113 S.W. 1157

134 Mo. App. 242

STONE v. STONE.

St. Louis Court of Appeals. Missouri.

November 17, 1908.

1. DIVORCE (§ 62)—JURISDICTION—RESIDENCE OF PLAINTIFF.

Under Rev. St. 1899, § 4160, subd. 17 (Ann. St. 1906, p. 2253), providing that the place where any person having no family shall generally lodge shall be deemed the place of his residence, a traveling salesman showing that for more than a year a city had been the center of his activity, and that he rented a room therein, and that he had selected the city as the place of his residence, showed his residence in the state within section 2924 (page 1682) providing that no person who has not resided within the state for one year shall be entitled to a divorce, etc.

2. DIVORCE (§ 59)—JURISDICTION—RESIDENCE OF PLAINTIFF.

To confer jurisdiction in divorce on the court under Rev. St. 1899, § 2924 (Ann. St. 1906, p. 1682), it is essential that the petition allege either that plaintiff has resided in the state one year before the filing of the petition, or that the injury complained of was committed within the state, or while one or both parties resided within the state.

3. DIVORCE (§ 79) — SERVICE OF PROCESS — PUBLICATION.

A suit for divorce is one in rem, the res being the status of plaintiff in relation to defendant, and service of process by publication on a nonresident defendant, as in an action in rem, is sufficient to authorize the court to grant a divorce.

4. DIVORCE (§ 127)—EVIDENCE—CORROBORATION.

Under the statute admitting parties in suits for divorce to testify on their own behalf, a plaintiff establishing by his own testimony a case for divorce should not be denied a decree on the sole ground that he is not corroborated, though corroboration of the evidence of plaintiff when defendant does not appear should be demanded when it can be reasonably produced.

Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.

Action by O. M. Stone against Julia A. Stone. From a judgment of dismissal, plaintiff appeals. Reversed and remanded.

Jas. M. Rollins, for appellant.

BLAND, P. J.

Action for divorce on the ground of desertion. The evidence shows that plaintiff and defendant were married on May 4, 1882, and separated January 16, 1906. It tends to show that both were elderly people at the time of their marriage, and both had children by a former marriage; that defendant had a married daughter living in Canada, and, saying she preferred to live with her daughter, without good cause abandoned her husband January 16, 1906, and went to Canada to live; that plaintiff and defendant lived most of their married life in the city of Chicago, in the state of Illinois, and never acquired a matrimonial domicile in the state of Missouri; that plaintiff came to St. Louis, Mo., June 1, 1906, was first employed by Cella & Co., has been a traveling salesman since he came to St. Louis, has not kept house, but has kept a rented room in St. Louis, and claimed said city as his place of residence since June 1, 1906. Plaintiff proved a good character. The service of notice of the suit was by publication. Defendant did not appear. After the close of plaintiff's evidence, and after due deliberation, the court handed down the following memorandum, omitting caption: "The court finds that the plaintiff and defendant never lived in this state as husband and wife; that there never had been any matrimonial domicile here; that all of the acts charged against the defendant were committed in another state and prior to the plaintiff coming to this state; that there is no testimony to sustain any of the allegations of the plaintiff except the uncorroborated testimony of the plaintiff; that plaintiff's residence in this state is a little more than barely sufficient to enable him to invoke the jurisdiction of the court at all. The notice to defendant is only constructive by publication. The residence of plaintiff has been peripatetic in the city according to his own testimony. I feel it of uncertain and doubtful duration. Under all the conditions, I am of opinion the decree should not be passed and the petition will be dismissed."

1. Subdivision 17, § 4160, Rev. St. 1899 (Ann. St. 1906, p. 2253), reads: "The place where the family of any person shall permanently reside in this state, and the place where any person having no family shall generally lodge, shall be deemed the place of residence of such person or persons respectively." That place is deemed a man's domicile which he himself selects to be his home, and which appears to be the center of his affairs. Chariton Co. v. Moberly, 59 Mo. 238; Greene et al. v. Beckwith, 38 Mo., loc. cit. 387; Humphrey v. Humphrey, 115 Mo. App. 361, 91 S. W. 405. Plaintiff's evidence shows that,...