124 Mo. App. 149 | Mo. Ct. App. | 1907
Plaintiff sued for divorce, alleging indignities, and upon a trial, the circuit court found the issues in his favor, whereupon a decree was entered to that effect, dissolving the bonds of matrimony existing between the plaintiff and defendant. We have carefully perused the entire record, but refrain from a statement of facts in proof for the reason that the case must be disposed of on a question arising on the pleading. The plaintiff in his petition, instead of averring that he had resided within the State “one whole year next before the filing of the petition,” in conformity with the statute (R. S. 1899, sec. -2924), averred that he is a resident of Pemiscot county and “has resided within this State and county more than one year before filing this petition.” The statute referred to is as follows:
“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 coin
At the opening of the trial, the defendant assailed the sufficiency of the petition to confer jurisdiction by interposing an oral objection, which was overruled. In her motion in arrest of judgment, she again directed the court’s attention thereto and upon it being overruled a second time, prosecutes this appeal.
It is indeed familiar law that the allegation of residence contained in this petition is insufficient to confer jurisdiction upon the court to proceed. Now, while it is not essential that the allegation should follow the precise language of the statute in this respect (Hinrichs v. Hinrichs, 84 Mo. App. 27), it should at least conform substantially thereto so that every material fact pertaining to the requisite residence of the plaintiff in the State and consequent jurisdiction of the court to hear and determine the cause, may be ascertained therefrom. The- statute substantially prescribes as a condition upon which the court shall entertain the bill, that the plaintiff shall have resided in this State one whole year “next before filing the petition,” and this has been frequently adjudged to mean precisely what it says, and that one whole year’s residence prior to the filing* of the suit is not sufficient unless immediately preceding, nor is the broad allegation, short of that, sufficient to confer jurisdiction upon the court, for the reason that such whole year’s residence may have been far removed from the time of the filing of the suit, whereas the residence contemplated by the statute is a whole consecutive.year next immediately preceding the date of the institution of the suit, and this has been the adjudicated law in this State since Cheatham v. Cheatham, 10 Mo. 296. [See also Collins v. Collins, 53 Mo. App. 470; Carter v. Carter, 88 Mo. App. 302; Johnson v. Johnson, 95 Mo. App. 329, 68 S. W. 971; Stansbury v. Stansbury, 118 Mo. App. 427, 94 S. W. 566.] Indeed, there are instances in which the allegation and proof of one year’s residence next before
In support of the judgment, the plaintiff invokes the doctrine of express aider and advances the argument that this defect in the petition is cured or supplied by the averments of the- defendant’s answer and cross-bill.
It is said, however, that the allegation of the answer shows the indignities therein complained' of were all committed in this State and therefore the defect of the petition is supplied and jurisdiction thus conferred. Now it must be conceded, for it is true, that there is no attempt on the part of either plaintiff or defendant to bring the suit within this provision of the statute and confer jurisdiction upon the court under the provision with respect to the injuries complained of having been “committed in this State,” nevertheless it appears quite clear by inference that the several indignities complained of in the defendant’s answer -were all committed within this State. We are unable to appreciate how this fact can supply the defect in the plaintiff’s petition, for every allegation by which the plaintiff charges indignities against his wife in the petition is specially tra
For the reasons stated, the judgment will be reversed and the cause remanded with permission to plaintiff to amend his petition if he so advised.