Carter v. Carter

88 Mo. App. 302 | Mo. Ct. App. | 1901

BROADDUS, J.

The amended petition on which this case was tried alleges: “That on the — day of —, 1872. in the county of Clinton, in the State of Missouri, he was lawfully married to the defendaut. That plaintiff continued to live with the defendant as her husband from and after the day and year aforesaid until the — day of March, 1896, last past; that during all that time plaintiff faithfully demeaned himself as the husband of defendant, and at all times treated her with kindness and affection; but the said defendant wholly disregarded her duties as the wife of the plaintiff, has absented herself without any reasonable cause for the space of more than one year, and has refused to live with plaintiff as his wife since the — day of March, 1896.”

Eor another cause of action plaintiff alleges, “That she has at divers times since said marriage sat in the lap. of one Phillip Morgan, and has told plaintiff that she had rather sit in Morgan’s lap than in his; and the defendant has frequently hugged and kissed the said Morgan in an affectionate manner, and that since the separation of the defendant from the plaintiff, as aforesaid, the said Morgan has almost constantly resided and lived at the house of the defendant. That she frequently since the marriage told this plaintiff that she thought more of the said Morgan than of plaintiff. Plaintiff further says that he is now a resident of Clinton cormty, Missouri, and has resided in Glinton county, Missouri, more than one year before the filing of this petition ” The petitior is properly sworn to.

The cause was tried and Mgment was entered granting plaintiff a divorce from which defendant appealed. The only question before us is, did the court have jurisdiction of the case under the petition.

The defendant in due time filed her motion for new trial and in arrest of judgment, both of which were overruled. The motion in arrest, among other grounds for setting aside the judgment, avers, “that the petition does not state a cause of action.” The statute provided that “no person shall be entitled to a divorce from the bonds of matrimony who has not resided within the State one whole year next before the filing of the petition, unless the offense or injury complained of was committed within this State, or wdiilst one or both of the parties resided within the State.” The petition fails to make this statutory allegation, but instead only states that he has resided in Clinton county, Missouri more than one year before filing the petition. The allegation should have been, “one whole year next before filing the petition.” As the offense charged was not alleged to have been committed in this State, the court had no jurisdiction of the cause. Collins v. Collins, 53 Mo. App. 470.

Tbe case is not helped by the decree, for it merely recites that the allegations of the petition were found to be true. Smith v. Smith, 48 Mo. App. 612.

The judgment is reversed and the cause remanded.

All concur.