Collins v. Collins

53 Mo. App. 470 | Mo. Ct. App. | 1893

Ellison, J.

— The plaintiff instituted this action for divorce, alleging that his condition was rendered intolerable by defendant, and setting up specific acts of defendant, which he alleges had the effect upon bim stated in the petition. He applied for a change of venue from the judge, alleging the latter’s prejudice against him. Pending the application a stipulation was made between plaintiff and defendant’s attorneys, agreeing- upon E. 0. Devore as a special judge. An answer, consisting of a general denial, was filed by defendant’s attorney, and so likewise was an applcation for alimony. Judgment was entered for plaintiff for the fault of the defendant. No order appears to have been made or action of any kind taken on the application for alimony. Defendant has sued out a writ of error within the sixty days limited by statute.

There were no exceptions preserved for reasons alleged, not necessary to examine. We are thus left to see what errors have been shown to exist upon the record. It is not pretended that the petition alleges or charges any act of defendant which, under the statute, would be sufficient ground for a divorce except indignities, and yet it is not charged that the acts of which complaint is made were indignities. It is not alleged that the matters complained of occurred in this state, or whilst one or both of the parties resided in this state. Nor is it alleged that the plaintiff had resided in this state, “one whole year next before filing of the petition.” The allegation in this respect is that “plaintiff further states that he is now, has for more than one year prior to the filing of this petition been a resident of Jasper county, Missouri.” Section 4503 of the Statutes of 1889, provides 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 filing of the petition, unless the offense or injury complained of was committed within this state, or whilst one or both of the parties resided within this state.”

We will not say that the very words of the statute should necessarily be stated in the petition, but it is a necessary requisite to make an allegation therein which ■will cover the intent and meaning of the statute. The reading of the statute is such as to make it plain that the residence, in character and time, is especially-intended. The residence must not be made up of different periods -which together will aggregate a year; but it must be for one whole year. More than this, the year cannot be any whole year prior to the commencement of the action, but must be a particular year, that is, the year next before filing the petition. The allegation of the petition in this case may all be conceded to be true and yet not fill a single requisite of the statute. The allegation in the petition could be true and yet the residence be in fact made up of a year or parts of years long since passed. Eor this reason we must hold the petition fails to set forth matters necessary to be stated in order to authorize the court to entertain the cause, or assume to grant the divorce. Hansford v. Hansford, 34 Mo. App. 262. Nor is the matter aided by the decree as was the case in Smith v. Smith, 48 Mo. App. 612, since the decree merely recites, in this respect, “that the allegations contained in the plaintiff’s petition are true.”

The authorities and argument thereon by plaintiff’s counsel we do not consider applicable to the essential features of the case as it appears in the record. The judgment will be reversed and the cause remanded.

All concur.