120 Mo. App. 677 | Mo. Ct. App. | 1906
Section 4327, chapter 51, Revised Statutes 1899, entitled “Married Women” provides: “When the husband, without good cause, shall abandon his wife, and refuse or neglect to maintain and provide for her, the circuit court, on her petition for that purpose, shall order and adjudge such support and maintenance to be provided and paid by the husband for the wife and her children, or any of them, by that marriage, out of his property, and for such time as the. nature of the case and the circumstances of the parties shall require,” etc. The plaintiff’s action is bottomed on this section. Defendant, by his answer, denied that he abandoned his wife, and countercharged that she had abandoned him, without good cause, alleged indignities and such other misconduct on the part of his wife as would, in a proper suit, entitle him to a divorce, and prayed that he be divorced from his wife. The cause was heard by the circuit court and the following judgment rendered (omitting caption) :
“Now at this day this cause coming on for hearing come the parties hereto by their respective attorneys and submit this cause to the court upon the pleadings, evidence and proof adduced, and the court, after being sufficiently advised herein, doth find in favor of the defendant on the issues joined in the plaintiff’s petition and the answer thereto, it is therefore considered and adjudged by the court .that plaintiff take nothing by her suit in this behalf and that defendant go hence without day, and recover of plaintiff his costs and charges herein expended, and that execution issue therefor. It is further considered and adjudged by the court that the defendant’s cross-bill be and the same is hereby dismissed for want of jurisdiction of the court.”
Plaintiff was granted an appeal from this judg
“That defendant pay to plaintiff the sum of $50 as and for attorney’s fees and to pay the costs of transcript, filing fee and brief, said sum of $50, be paid on or before August 6, 1906.”
Defendant appealed from this order. The jurisdiction and authority of the circuit court making the order is challenged by the defendant. At common law, the wife has the implied authority, as agent of her husband, to pledge his credit for the necessaries of life (Schouler’s Domestic Relations, sec. 61), but she cannot sue her husband at common law for maintenance. [15 Am. and Eng. Ency. of Law (2 Ed.), p. 814.]
The Kansas City Court of Appeals, in Long v. Long, 78 Mo. App. 32, held the wife, in an action against her husband for separate maintenance, was entitled to alimony pendente lite, ánd that the statutory provisions in relation to alimony in suits for divorce do not militate against this right.
Illinois has a statute which provides: “That married women who, without their fault, now live, or hereafter may live separate and apart from their husbands, may have their remedy in equity in their own names, respectively, against their husbands for a reasonable support and maintenance while they so live, or have' so lived, separate and apart; and in determining the amount to be allowed, the court shall have reference to the condition of the parties in life and the circumstances of the respective cases; and the court may grant allowances to enable the wife to prosecute her suit as in cases of divorce.”
In Harding v. Harding, 144 Ill. l. c. 597, the court, in discussing the remedy, said: “The remedy is given in equity, and when the aid of that jurisdiction is properly invoked, it necessarily calls into activity all of the ordinary powers of the court necessary to render the remedy
After reviewing the English cases which deny the wife the right to sue her husband for separate maintenance, Story says: “In America a broader jurisdiction in cases of alimony has been asserted in some of our
In Glover v. Glover, 16 Ala. 440, the English and American cases were reviewed by the court and the conclusion reached, that while in England there is no jurisdiction in equity entitling a married woman to sue her husband for separate maintenance, the right of the wife to sue her husband in equity for separate maintenance, where he has abandoned her and cast her off without the means of sustenance, is well established in America. To the Illinois and Alabama cases may be added Milliron v. Milliron, 68 N. W. 286; Bueter v. Bueter, 45 N. W. 208; Simpson v. Simpson, 59 N. W. 22; Starke v. Starke, 99 Calif. 621; Miller v. Miller, 15 South. 222. In the light of these American authorities our statute should be regarded as a legislative adoption or recognition of the equity jurisdiction of the circuit court to award the wife separate maintenance out of her husband’s estate when he has abandoned her without her fault and she is without means of support. This equity jurisdiction to award alimony to the wife who has been abandoned by her husband without her fault, has no analogy to a suit for divorce from the bonds of matrimony, and the case of Doyle v. Doyle, 26 Mo. 545, where Judge Scott, at page 549, said: “The extent of the jurisdiction of our courts in matrimonial cases is limited by statute; a court has no authority to grant alimony but as an incident to a divorce, except where it is conferred by law,” does not militate against the views herein expressed and has no bearing whatever upon the case. If the wife