150 Mo. App. 414 | Mo. Ct. App. | 1910
On the 9th of December, 1907, the plaintiff filed her petition in the circuit court of Monroe county, in which she states that on or about the first day of January, 1905, in the State of Illinois, she was lawfully married to the defendant and continued to live with him as his wife from and after that date until the 30th day of May, 1907, “at which time she separated herself from the defendant and has ever since lived separated and apart from him;” that during all of that time she faithfully demeaned herself as a wife, treating him with kindness and affection, and that she is an innocent and injured party, but that the defendant wholly disregarding his duties as the husband of plaintiff, has been guilty of committing adultery,” with a party named, at Monroe county, this state, during the married life of plaintiff and defendant. She further states that she
The answer denies the marriage, denies commission of adultery, denies residence of plaintiff in the county or state, denies that defendant is the owner of lands of the value of $65,000, or of personal property of the value of $35,000, and avers that the suit is brought, not in good faith by plaintiff, but for the purpose of trying to extract money out of the defendant! This is all traversed by the reply, which avers that.the suit is brought for the purpose of procuring a divorce from defendant, “and for such other relief as the plaintiff is entitled to under the law, and for which the plaintiff prays, as in the original petition she has already prayed, and for which she will ever pray.”
On a trial the court found against plaintiff on all the allegations of marriage and of adultery and dismissed the suit, from which decree plaintiff has perfected appeal to this court.
By the Constitution of our state as it now stands and under the law as recently amended, appeals lie to the Supreme Court in all cases where the amount in dispute, exclusive of costs, exceeds the sum of $7500.
In the case of State ex rel. King v. Gill, 107 Mo. 44, 17 S. W. 758, which was an application for mandamus against the judges of the Kansas City Court of Appeals to require them to transfer to the Supreme Court an appeal in a divorce case, the jurisdictional limit of the courts of appeal then being $2500, the question was distinctly presented as to whether the jurisdiction was in the Supreme Court- or in the Court of Appeals, it being claimed that the relator, who was the plaintiff in the divorce proceeding, had averred in her petition for divorce that the defendant was possessed of property worth $250,000. But in that petition, although there was a prayer for alimony generally, plaintiff had claimed no specific sum. Judge Barclay in determining the question of jurisdiction, and referring to this feature of the petition says (l. c. 49), that a plaintiff “might, undoubtedly, by greater definiteness in this regard, have laid a basis for invoking the reviewing power of the Supreme Court, but that ivas not done. The case closed in the circuit court without any statement, originally or by amendment, that might imply an intention to claim a sum beyond $2500. The only allegation that can be suggested as tending in that direction, in the remotest way, is that the defendant was possessed of $250,000 worth of property. But from this fact alone, in the total absence of a demand for any aliquot part of that fortune, as alimony, the court cannot infer that, plaintiff designed to-make a demand in excess of $2500, when she omitted to give expression to such a claim at any stage of the proceedings in the court of first instance.” Preceding this part of the opinion, Judge Barclay, quoting Gercke v. Gercke, 100 Mo. 237, 13 S. W. 400, and Wade v. Loudon, 30 La. Ann. 660, states that although an action for divorce usually falls within
In the case at bar, an action for divorce, the plaintiff has distinctly laid a basis for invoking the reviewing power of the Supreme Court, by demanding, both in her petition and in her reply, alimony in gross in the sum of |50,000. The question of jurisdiction has not been presented by counsel in the case, but it is one which confronts us on the record and which we are bound ex mero motu to notice.
We are not unmindful of the line of decisions which hold, that for the purpose of determining jurisdiction, the courts are not to look solely to the amount stated by the plaintiff in the petition, recognizing it as the established law of this state, that the appellate courts reserve to themselves “the right in emergency to control the question of jurisdiction by looking into the whole