Weisheyer v. Weisheyer

• Decision Date: 05 March 1929
• Docket Number: No. 20597.,20597.
• Parties: WEISHEYER v. WEISHEYER.
• Court: Missouri Court of Appeals

14 S.W.2d 486

WEISHEYER v. WEISHEYER.

No. 20597.

St. Louis Court of Appeals. Missouri.

March 5, 1929.

Rehearing Denied March 20, 1929.

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

"Not to be officially published."

Action by Wilhelmina Weisheyer against Henry W. Weisheyer. From the decree, defendant appeals. Reversed and remanded, with directions.

Fred. Armstrong, Jr., of St. Louis, for appellant.

Conrad Paeben, of St. Louis, for respondent.

HAID, P. J.

This was an action instituted in the circuit court on January 19, 1927, by the plaintiff against her husband, the defendant, to recover separate maintenance under section 7314, R. S. Mo. 1919, alleging, as a ground therefor, that plaintiff had been abandoned by the defendant and since December 1, 1926, he had refused and neglected to maintain and provide for plaintiff. The present suit followed the dismissal of an action for divorce brought by the defendant against the plaintiff, and which case was pending on appeal in this court and is the subject of the decision in 6 S.W.(2d) 989. The defendant filed an answer, paragraph 1 of which stated that he was appearing for the purpose of this plea only and for no other purpose, followed by an allegation that there was then pending between the parties the divorce suit in which an appeal was pending in this court, and prayed for the dismissal of the present suit on the ground that the plaintiff was not entitled to maintain the same. To this plea the defendant filed a demurrer, which demurrer was overruled by the court. The plaintiff also filed a motion to strike out parts of the defendant's answer, and this motion was also overruled. At the trial, and before any evidence was offered, the defendant asked leave to introduce in evidence testimony with reference to the pending divorce suit in support of the plea in abatement which he contended should be first determined. The court, however, ruled that it would first hear plaintiff's evidence in support of the petition, to which action the defendant objected and excepted. The defendant, in support of his plea, offered in evidence the files in the divorce suit showing that the same was pending at the time the present suit was instituted. In the motion for new trial, the defendant again challenged the right of the circuit court to entertain the present suit during the pendency of the divorce suit, and again, by motion in arrest, he also challenged the authority of the court to entertain the present suit.

We have not set out the other defenses offered in the answer, nor the evidence on the merits introduced at the trial, because of the views we entertain concerning the plea in abatement.

No challenge is made against the manner of directing the court's attention to the question presented therein, and in fact there could be none, because the provisions in our statute (section 1224), that "the only pleading on the part of the defendant is either a demurrer or an answer," and the provision of section 1233, that "the defendant may set forth by answer as many defenses and counterclaims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both," have been held to contemplate that but one answer shall be filed, thus dispensing with the common-law rule that a plea in bar waives all dilatory pleadings or pleas not going to the merits. Little v. Harrington, 71 Mo. 390; Roberts v. American National Assurance Co., 201 Mo App. loc. cit. 244, 212 S. W. 390, and cases cited.

Was the circuit court in the present case authorized to hear and determine the question of separate maintenance in view of the pendency of the divorce proceeding? Section 1806 of the Revised Statutes of Missouri 1918 provides, among other things, that the court (in which the divorce suit is pending) "may decree alimony pending the suit for divorce in all cases where the same would be just, whether the wife be plaintiff or defendant," etc., and, as we view it, precludes any other action having for its purpose the like relief. 30 C. J. 1076.

The provisions of the maintenance statute have a purpose; that is, to enable a wife, who does not desire to seek a divorce, to nevertheless compel her husband to furnish her that support to which she is entitled by reason of the obligation which the husband assumed...