171 Mo. App. 317 | Mo. Ct. App. | 1913
Plaintiff is the wife of defendant and brought this action against him for maintenance. She obtained an allowance in the trial court for ten dollars per month, and defendant appealed.
Plaintiff alleges that she left defendant’s home for the reason that he mistreated and failed to support her. They were married in 1898 and lived together until she left him in 1909. Each had been married before and each had grown children by their former marriages. These children had married and at the time of separation were living to themselves. Each had property when married, though in an unfortunate move to Texas each lost most of it, though defendant kept his farm (a fairly good one) of about one hundred acres, in Daviess county. Plaintiff remained in Texas for a considerable time after defendant returned to this State. On her return they lived together on the farm, and with the exception of complaints on plaintiff’s part of the disrepair and discomforts of the house and of slowness on defendant’s part to give her proper money for personal expenses, seemed to
There was testimony by plaintiff and by some persons who had visited them, that the house was uncomfortable in the winter. She said the roof leaked, but that defendant had a new one put on. In the course of her testimony she stated that they were buying some stock — that she put in twenty-five dollars and defendant told-her “to go to the bank and get the money and tell the banker to sign his name and the banker told me to sign his name and I did so and got the money.” This note was for $185. Defendant himself got $150, signing his own name, making $335. She then stated that afterwards defendant accused her of forging his name and “said he had not given her authority to sign it.”
Finally “he swore he wouldn’t furnish feed for my chickens any longer . . . and I said if I can’t ■even have feed for my chickens there is not much in it for me, and if I have to sell them I will get out while I have the money to get out with. ... I sold my stock and a greater part of my household goods, took some with me. I could not live with him, now, even if he would support and care for me as I think he should, because I value my soul; I value my hereafter. I don’t think anybody could live with any of them and
She further testified that after leaving defendant she “went to her daughter’s home in Nebraska and stayed two years, then came back, went to Jameson and Gallatin and visited old friends and then went to my daughter’s at New Hampton, where I have been most of the time since.” She further testified that she had a talk with defendant since this action was begun, saying: “He told me one of the neighbors was poisoning their chickens. I told him I wouldn’t go out there on the farm and live in all the fuss, for all they had, if it was just deeded to me. He said he would buy a house in Jameson for us to live in; he told me where, and I said I would rather live on the other side of town where there were walks, so I could go to church. I told him he must furnish the house, that I had sold off all my household goods. I said you never did clothe or give me any money, I would have to have spending money to clothe myself. He said he- always gave me one-half of everything he had and I told him some one else would have to settle it.” And in this connection we may say that a witness for defendant testified that plaintiff told him while at his house at about the time this action was brought, that she would live with defendant if he would buy property in town and move in where they could live easier.
Defendant for himself testified in denial of any mistreatment of plaintiff. Said he considered the house comfortable. That he gave her money many times. That she had all the'money from sale of produce and chickens, besides the money from her own cows, calves and hogs, and that she had much more money than he had. He told her .of the provisions of his will for her, and for the purpose of showing his
A letter to plaintiff, said to be from one cf defendant’s sons, married and living to himself, was introduced in evidence over defendant’s objection. There was no showing that defendant knew of the letter, or that he approved of its contents and it ought not to have been considered. But regardless of that error, we think the judgment should have been for defendant on the whole case. The fact, standing alone, that plaintiff left defendant’s abode, will not deprive her of her statutory action for maintenance. If the husband’s treatment of the wife is such as to make her condition intolerable; if it is such as would afford her ground for an action for divorce, she may quit their residence and bring her action for maintenance. [McGrady v. McGrady, 48 Mo. App. 668; Droege v. Droege, 52 Mo. App. 84; Polster v. Polster, 145 Mo. App. 606; Wyrick v. Wyrick, 162 Mo. App. 723, 735.]
But we think the plaintiff’s situation was not such as to afford her just ground for leaving the home and demanding separate support. The trouble between them was largely trivial. We do not find defendant to be responsible for much of her discontent. Their loss of property was no more chargeable to him than to her. It was a misfortune without blame for either. His feeling for her, as is evidenced by the will, was not unkind, and we are not persuaded that she suffered for the plain comforts of life, which is all she could ask in their situation. It appears from her own testimony that she would have been willing to resume her abode with him if he would move to town — that is, to a particular part of town. More than that, it seems that defendant’s failure to give her money for clothing was not the reason of her refusal to continue to live with him.' The immediate cause, as she states it, was his refusal further to feed her chickens. And her refusal
But plaintiff claims that defendant’s abstract of the evidence upon which we have depended is not full and, as the case has been appealed by the short method, she has had' the full transcript sent to us and we are asked to read it for a better understanding of the facts. We cannot do that. It is not contemplated by the statute or rule 15 of this court that we should. The statute (Sec. 2048, R. S. 1909) provides that if a respondent is dissatisfied with the abstract presented by an appellant, he shall file an additional abstract on his part, and if the appellant shall not concur in it, he shall specify in writing his objections. An issue is thus made and the court will make an order requiring the circuit clerk to send a certified transcript. Instead of pursuing this course, plaintiff filed a “suggestion of diminution of the record,” and obtained an order for a full transcript to be sent to this court. The suggestion alleges that defendant’s abstract “fails to include all the testimony of the witnesses, and also fails to include all the documentary evidence in the case; that it assumes to include the substance of the oral testimony, but such abstract is only partial and not sufficient for a full and fair consideration of the case on its merits.”
An appellant’s dereliction may be of such character as upon proper motion and showing in. support thereof, the court will dismiss his appeal. Or, it may appear to be of the nature now insisted upon by plain
Concluding’ the finding should have been for defendant, the judgment is reversed.