Walton v. Walton

• Decision Date: 05 June 1928
• Docket Number: No. 20277.,20277.
• Parties: WALTON v. WALTON.
• Court: Missouri Court of Appeals

6 S.W.2d 1025

WALTON v. WALTON.

No. 20277.

St. Louis Court of Appeals. Missouri.

June 5, 1928.

Rehearing Denied June 21, 1928.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by Lilah A. Walton against James Edward Walton for divorce. From a judgment of dismissal, plaintiff appeals. Reversed and remanded.

Oakley & Frank and Foristel, Mudd, Blair & Habenicht, all of St. Louis, for appellant.

Oliver T. Remmers and Ernest A. Green, both of St. Louis, for respondent.

BENNICK, C.

This is an action for divorce, instituted in the circuit court of the city of St. Louis, by the wife, Lilah A. Walton, as plaintiff, against her husband, James Edward Walton, as defendant. The petition was in the usual form for cases of this character, and counted upon such indignities as to render plaintiff's condition in life intolerable. Service was had upon defendant in Washington county, in this state, on the same day on which plaintiff's petition had been filed, and the return was duly made by the sheriff of such county, who had executed the writ.

On December 6, 1926, defendant, specially limiting his appearance for the purposes of his motion only, filed a plea to the jurisdiction and for the abatement of the cause, upon the ground that at the time the petition for divorce was filed both plaintiff and defendant were residents of Washington county, in consequence of which the circuit court of the city of St. Louis had no jurisdiction over either the subject-matter of or the parties to the action. A hearing was held on such motion, after which the court sustained the same; and, upon plaintiff's refusal to plead further, the court rendered final judgment dismissing her petition, from which she has appealed to this court.

So far as the pertinent facts are concerned, it appears that plaintiff had resided in the city of St. Louis from childhood until October 23, 1922, when she was married to defendant, who had been a resident of the town of Belgrade, in Washington county, for 28 years, and was engaged in business in that locality. Thereafter, the matrimonial domicile was concededly at Belgrade, at least until the date of the separation of the parties, which is fixed as of October 15, 1926.

According to defendant's version of the circumstances surrounding the departure of plaintiff from home, it seems that he and his wife had had no domestic difficulties, and that she merely informed him that she was going to St. Louis to pay a visit of a few days' duration to her mother, who resided at 19 North Newstead avenue in such city. On October 19th, however, plaintiff returned to Belgrade, in company with the sheriff of Washington county and a deputy sheriff of the city of St. Louis, at which time the summons was served on defendant and a copy of plaintiff's petition filed in the circuit court of the city of St. Louis earlier on the same day, delivered to him. Plaintiff displayed affection for defendant at the moment of her arrival, so the latter testified; but after service had been obtained upon her husband, she busied herself for an hour or more in packing her personal belongings into bundles and boxes, which she loaded into her automobile, and then left with the officers of the law, returning the same night to St. Louis with the deputy sheriff of that city.

Plaintiff's evidence was that, due to the indignities that had been heaped upon her by her husband, she had contemplated leaving him and going to St. Louis for several months prior to October 15th, and had so informed certain of her acquaintances, but that she had hesitated to carry out her purpose because of the advice of her friends that she should "go back and try it over again." However, she had, nevertheless, been continually bringing certain of her personal effects to St. Louis, and had but few belongings remaining at Belgrade, even for as long as six weeks before she finally left there. She admitted that, when she was in the act of leaving on the morning of October 15th, she did not tell her husband of her intention not to return, but sought to justify such omission on the ground of fear, in that defendant had threatened that he would kill her if she brought an action against him for divorce. As soon as she arrived at her mother's home in St. Louis, she informed her mother and two friends, who happened to be visiting there at the time, that she had "come to stay," in which statement she was corroborated at the hearing by two of those who had been present on such occasion. She further testified that, when she left Belgrade, she had no intention of returning there to live, but intended to and did make St. Louis her home; and that she lived with her mother at the Newstead avenue address until December 20, 1926, when she leased an apartment at 23 South Taylor avenue, where she was residing at the time the hearing was held in the lower court.

Although plaintiff has voiced her objections to the proceedings had below, under a nominal assignment of four separate errors, there is really but one issue involved on this appeal going wholly to the question of the propriety of the action taken by the court in sustaining the plea in abatement, and in dismissing plaintiff's petition upon her refusal to plead further. The law governing this case is comparatively simple, and has been fully stated in the reported cases, so that whatever difficulty we may encounter will not lie in determining what rules of law will be applicable to the situation at hand, but rather in applying such guiding principles to the facts in evidence.

Much of the confusion that...