150 Mo. App. 660 | Mo. Ct. App. | 1910
This is an action for divorce by the wife, plaintiff, against her husband, commenced in the circuit court of the city of St. Louis the 23d day of July, 1908. The parties were married in St. Louis county, February 23, 1907. There are some charges in the first count of the petition to the effect that defendant frequently and without the consent and against the wishes of plaintiff went.out at night and remained away from the home of plaintiff and defendant until unreasonably late hours and frequently returned to the home under the influence of liquor; that defendant was of a cross and sullen disposition and would frequently refuse to speak to or in any way recognize plaintiff; that during the time they had lived together defendant did not give or furnish plaintiff any money whatever for her support. It is further averred that on the 9th of April, 1907, defendant, without any reasonable cause or any cause whatever, deserted plaintiff and remained away from their home until the 17th of July, 1907, when defendant returned and remained there one day. This is the substance of what is called the first cause of action. “Asa further cause of action,” it is charged that on the 18th of July, 1907, defendant without any reasonable cause or any. cause whatever, deserted plaintiff and has absented himself from plaintiff without any reasonable cause for a space of one whole year and more next
While the petition charges acts of occasional intoxication, there is no charge in it that the defendant had “been addicted to habitual drunkenness for the space of one year,” as required by statute, section 2921, Revised Statutes 1899, section 2370, Revised Statutes 1909. In fact there is no evidence to sustain such a charge, even if it had been made. Occasional intoxication, which is all that is pretended to have been the case, is not habitual drunkenness for the space of one year — which means one year of the marriage — and the parties here separated within the first year. Nor is there any charge of a failure to support, beyond the charge that defendant had not given plaintiff any money, which is not, of itself, a failure to support. The ease in fact must rest on the question of causeless desertion, or, as the statute has it, that the husband has absented himself “without a reasonable cause for the space of one year.” We have read all of the testimony in the record and are satisfied that the learned trial judge arrived at a correct conclusion in dismissing the action. It appears from the testimony in the
“Q. Is it true that you had one divorce suit before this? A. Yes, sir.
“Q, Where? A. At Clayton, Missouri.
“Q. What became of it? A. It was dismissed.
“Q. Dismissed, why? A. I didn’t wait and hear, I suppose—
“Q. Did you try the case, I mean? A. Yes, the case was tried.
“The court: Well, you might as well have stayed in the county, because your bill will be dismissed. I do not want to make myself a party to having children run together and run apart at will. These young people did not know, when they were married, what they were undertaking. There is absolutely no reason why these easy divorces should be granted, and I for one, will not be a party to it.”
Reading all the testimony in the case, we think that the learned trial judge arrived at a correct conclusion. To permit the marriage relation to be lightly dissolved, and under the facts here presented, cannot fail to lead to immorality.
We are cited by learned counsel for appellant to the cases of Grove v. Grove, 79 Mo. App. 142; Freeman v. Freeman, 94 Mo. App. 504; Hamberg v. Hamberg, 147 Mo. App. 591, 126 S. W. 808. The two latter cases have no analogy in their facts to the case at bar. In Grove v. Grove it is laid down as a rule governing the action of ajopellate courts in divorce cases, that it is the duty of the appellate courts to review the evidence and award such judgment as the trial court should have awarded. That is the undoubted and settled rule in this state in these actions. The very fact that an appeal lies, is an unmistakable expression of the legislative will. While statutory actions, they are treated as suits in equity, as suits in which the appellate court is to review them, not on the law alone, but on the whole record; on the facts as well as on the law. Reading the record and drawing our own conclusions upon the weight to be given to it, and independent of the' action of the learned trial judge, we say that we concur with him in his conclusion on the facts. The judgment of the circuit court is affirmed.