Stuart v. Stuart

• Decision Date: 03 July 1928
• Docket Number: No. 26775.,26775.
• Citation: 8 S.W.2d 613
• Parties: FRANK J. STUART, Appellant. v. LILLIAN STUART.
• Court: Missouri Supreme Court

8 S.W.2d 613

FRANK J. STUART, Appellant. v.LILLIAN STUART.

No. 26775.

Supreme Court of Missouri, Division One.

July 3, 1928.

Appeal from Circuit Court of City of St. Louis.— Hon. John W. McElhinney, Judge.

TRANSFERRED TO ST. LOUIS COURT OF APPEALS.

A.E.L. Gardner for appellant.

Abbott, Fauntleroy, Cullen & Edwards and Taylor R. Young for respondent.

RAGLAND, J.

This is an appeal from an order of the Circuit Court of St. Louis County awarding suit money and alimony pendente lite.Appellant and respondent were married in September, 1922.On the 11th day of February, 1924, he instituted a suit for divorce charging her with having offered him such indignities as rendered his condition intolerable.In due course she filed an answer and cross-bill, making counter charges of indignities and seeking by her cross-bill to be divorced from him.Pending the trial of the cause she was allowed suit money and $250 a month for her support, which he promptly paid.A trial was had in November, 1924; on December 8, 1924, judgment was rendered dismissing both the petition and the cross-bill.Thereupon she filed an affidavit for an appeal from the judgment dismissing her cross-bill, and also a motion for a further allowance of suit money and for alimony pending the appeal.After a hearing the court ordered plaintiff to pay to defendant the sum of $300 per month for her support pending the appeal, $1000 for attorneys' fees, $650 for the stenographer's transcript of the evidence, and $1110 for printing the abstract of the record and for filing fee in the appellate court.This is the order now before us for review on plaintiff's appeal.After the making of the order defendant was allowed an appeal from the judgment on the merits and that appeal is also pending in this court.

The foregoing is a sufficient statement of the facts, because the first question that suggests itself on the record is that of our jurisdiction.Our appellate jurisdiction is not a general one, but one specifically limited by the Constitution.We have held, therefore, that our jurisdiction to determine an appeal must in every instance affirmatively appear from the record of the trial court.[Vordick v. Vordick, 281 Mo. 279, 219 S.W. 519.]Consequently such jurisdiction must so appear at the time the appeal is taken; nothing that subsequently occurs may be invoked either to confer jurisdiction or to show that the appeal was one falling within our jurisdiction.[McGregory v. Gaskill, 296 S.W. 123.]

If we have jurisdiction of this case, it is because the amount in dispute, exclusive of costs, exceeds $7500.The entire allowance of suit money and alimony was, and is, contested by appellant on the ground that respondent has ample means of...