Sweeney v. Sweeney

• Decision Date: 24 May 1926
• Docket Number: No. 15443.,15443.
• Citation: 283 S.W. 736
• Parties: SWEENEY v. SWEENEY.
• Court: Missouri Court of Appeals

283 S.W. 736

SWEENEY v. SWEENEY.

No. 15443.

Kansas City Court of Appeals. Missouri.

May 24, 1926.

Appeal from Circuit Court, Grundy County; L. B. Woods, Judge.

"Not to be officially published."

Suit for divorce by Luther Sweeney against Fannie Sweeney, in which defendant filed cross-bill. Judgment for plaintiff, and defendant appeals. Affirmed.

Lesley P. Robinson, of Trenton, for appellant.

A. G. Knight, of Trenton, for respondent.

ARNOLD, J.

This is a divorce suit. The petition is in two counts; the first being a plea for divorce from defendant under charges of indignities and cruelties. The second count alleges plaintiff and defendant are the owners of an estate in the entirety; that defendant is indebted to plaintiff in the sum of $7,500 for money belonging to plaintiff, taken and unaccounted for by defendant. Plaintiff seeks an accounting, and asks that the estate in the entirety be sold and the proceeds applied to each party as their interests may appear.

The answer is a general denial and a, specific denial of each charge in the petition. Defendant also filed a separate cross-bill, alleging specific acts of indignities of plaintiff to defendant, charging nonsupport, and asking: (1) That plaintiff be ordered to pay defendant such sum as shall appear to the court reasonable and just as attorney fees, costs, and expenses of this action; (2) that defendant be granted a divorce on her cross-bill; (3) that certain real property in the state of Missouri, described in the petition, be divided between the parties as their interests may appear. Plaintiff's reply is a general denial.

The record discloses defendant was living in the state of California at the time the suit was instituted. The action was filed on December 1, 1923, during vacation of the Grundy circuit court, and service on defendant was by publication, proof thereof being made in vacation, on December 27, 1923, and filed on the 1st day of the February term, 1924, and on February 18th defendant took leave to plead on or before Monday, February 25, 1924. The answer and cross-bill were filed on the date last named. On Monday, March 24, 1924, being an adjourned term, defendant filed her application with affidavit for continuance, which was sustained on that date, and the cause continued.

At the next regular term of the court, being the June term, 1924, and on June 2d, defendant filed her application, supported by affidavit, for change of venue, charging prejudice of the trial judge, but this motion was denied upon the ground, as stated by the court, that the evidence showed that the cause alleged in the application for change of venue, to wit, prejudice of the judge, was known to defendant and her attorney, and that defendant and her counsel had knowledge thereof at the next preceding term and at the time the application for continuance was made. Thereafter, and on March 23, 1925, being the 1st day of the February, 1925, adjourned term, the trial of the cause was commenced, and was concluded on March 31, 1925. Judgment was rendered for plaintiff on his petition and against defendant on her cross-petition. After motions for new trial and in arrest were overruled, defendant brought the case here by appeal.

On said March 31, 1925, defendant took leave to file her bill of exceptions which, thereafter, was accordingly filed. The motion for a new trial embraced the following points, to wit: (1) The court erred in refusing the application of defendant for change of venue; (2) the verdict is against the evidence; (3) the verdict was for the wrong party; (4) incompetent, irrelevant, and immaterial evidence was admitted on the part of plaintiff; (5) competent, relevant, and material evidence offered by defendant was excluded; (6) the verdict is excessive and inequitable (7) the plaintiff was not entitled to a divorce or the relief granted; and (8) the court was without jurisdiction in the premises.

In her assignments of error defendant charges: (1) The court erred in refusing to grant appellant a change of venue of said cause on her application filed therefor; (2) the court erred in requiring defendant to proceed to trial, for the reason that, the application having been in due form and due notice given, it was mandatory on the court to grant the change of venue; (3) the court erred in granting a divorce to respondent and partition of the property held by the entirety, and erred in rendering judgment against the appellant.

There is no testimony on the merits of the case preserved in the bill of exceptions, and, therefore, there is nothing before us for review relative to defendant's third assignment of error. As her first and second charges refer to the action of the court in overruling her application for change of venue, they may be considered together.

From the record before us we learn that on June 2, 1924, when the cause came on for hearing, defendant filed her verified application for change of venue, charging bias and prejudice of the trial judge against defendant. Notice of said application was served upon plaintiff and his counsel on June 2, 1924, and, said application coming on for hearing on June 4, 1924, counsel for defendant read the application, and counsel for plaintiff asked defendant's counsel, one Robinson:

"Do you admit you prepared an application at the last term of court and did not file it for the reason the cause was continued? A. I don't know a thing about it."

"Mr. Knight (counsel for plaintiff): Swear Mr. Thompson, then."

Mr. Thompson, being sworn, stated defendant wanted a continuance of the cause at the prior term, and had an affidavit for change of venue prepared for filing, charging prejudice of the trial judge, as in the present application; that it was not verified by oath; that the affidavit was prepared as a matter of precaution, so that, in case a continuance was not granted, it would be verified and filed, in order to secure the continuance; that, as the continuance was granted on defendant's motion, the application for change of venue was not necessary. The witness then stated:

"Out of precaution in case I was forced to trial, I had reason to believe there was some prejudice, if the continuance was granted, then that matter there didn't amount to anything and she didn't know a thing about it."

The court remarked:

"The record shows an application and affidavit was prepared, and whatever was dons by counsel the client is bound by it. In that matter he had one prepared last term of court, and did not file it, and comes now and files one. It comes too late. Accordingly the change of venue is overruled. He says he had it prepared; hence he had the knowledge. That's the point."

Further, the court said:

"The court overruled the application for the reason the evidence shows that the attorney bad the knowledge, which he alleges in this affidavit at the February term of the court. * * * The evidence shows he had an application and affidavit prepared substantially in the same form as this one; hence the court holds he had the knowledge."

Defendant, by counsel, saved an exception to the above ruling. In support of her appeal, defendant insists that, the application being correct in form, and containing all the essential allegations, and being properly verified and filed after due notice to the other party, the court had no...