*1 Rеspondent, Missouri, Appellant, Highway and State Commission of they affirming and that vacate their said order heretofore (No. Ap 17,027) in said made entered cause said Court of peals; Ewing Trimble, and that H. said Francis C. Bland Henry City Arnold, L. Appeals, members of said Kansas Court forthwith reinstating court, make an order cause in said said they proceed do then with said cause” in a dis due course to position of the ease. prayer
We amend the alternative conform to amended writ peremptory petition, and our writ should be awarded to con- with form the amended writ. It is so All alternative ordered. con- cur. Kelly. (2d) 762. v. E. O. Appellant,
Annie Kelly, Banc, March Court en Mayheiu appellant. M. O. Morris and D. S. *2 Newman, & respondent.
Neale
Springfield
STURGIS, C. This case comes to this court from the
judges
of the dissent of one
Court of
reason
majority
Rankin
opinion
with
in conflict
that court who deemed the
Rankin,
201, in this court wbicb majority but professed to follow distinguished. The Court of Appeals reported in 11 decision is S. (2d)W.
The case was tried in the County Circuit Court of where Lawrence against plaintiff went on a demurrer petition, plaintiff appealed Springfield Appeals. Court of plain- tiff, Nelly, Annie is the divorced defendant, Kelly, wife E. O. suit and the is an expense action to recover the by her in the maintenance of petition children. The al- leges marriage subsequent рlaintiff defendant, being granted the divorce defendant, but with an award plaintiff of the care and of their two minor children. While the decree of divorce awards the care of the two *3 wife, provision minor children to the no whatever was for their made support, judgment being the subject. on silent that The petition alleges plaintiff further that after supported the divorce the by these minor two children out of her own means her own and labor they majority. alleged until each their It reached is also that divorce, consequence years of ago, a similar suit some but after the tried, paid w'hich suit was never on compromise plain- the defendant years tiff for her the children a of number of but rеfused pay by is, therefore, further. divorced This suit the wife recover necessary by expenditures from father the the made mother the supporting during part minority. their their minor children a of stating trial petition
The court sustained a to the as not demurrer necessary action, a of from any not lack of averment of cause fact, independent form an but because the of the action is that of being ancillary proceeding suit instead of motion in a or original that for divorce. The trial court ruled under action provisions statutes, 1812, Revised Statutes our Sections and mother, (now 1361, 1929), Secs. S. a divorced wife and R. granting whom has the court in the divorce awarded marriage provision but has made no of the minor children against later action their cannot maintain expended in father to recover what she has their —that any, remedy, appropriate proceed- if is motion engrafted granting suit in in or on the divorce the court authority divorce. The trial ruled on the of Laumeier v. court which it construed that the alimony given by as to allowance such "to make alterations statutes 1929) (Sec. 1355, or "to review' and maintenance" R. S. order alimony maintenance and touching and (Sec. 1361, R. of the children" maintenance care, and S. 1929), preclusive exclusive and of all other remedies such matters, and plaintiff’s petition sustained a because demurrer to stating based cause divorced mother duty on the common law of the his minor children giving persons duty, perform neglect third who his on refusal, him. question presented by
This was the plaintiff’s appeal Spring- Appeals field Court in this case and in which the members that ruling agreed wrong that of the trial court and reversed judges remanded the case. all that court reached result but different routes on theories as to the law. different reading majority A of the Court of shows rales that decision of this court the Laumeier under the case, except supra, plaintiff’s present lie cause of action would not brought minor children for the fact that at the time it was majority support plaintiff suing whose had attained longer divorce, were wards оf the court and hence court’s had terminated and it could award the wife divorced relief ‘‘alterationor "review” of the by statute; divorce, provided decree of and for reason action, which common law divorced wife would be restored to her having is, performed mother this case recover on account agree support his We that the the father’s minor children. of its orders
power to review or make alterations divorce court ceased with such touching the authority plain proposition, for so minority, and if be needed (2d) 1199, 2 W. S. Thornton, Thornton cases of *4 J. Conrad, 296 W. hold. C. S. so and Conrad [See Cox, ground that judges, J., on the dissented One of the sec. 822.] by in case statutory motion the if law is that the the the court commits whom is that the divorced to exclusive and sup provision for their children, without of the minor the by motion the divorce court port, by appealing to must seek relief pos court is review, to do while the then the failure to alter misfortune, not af but would fault and power is her of such sessed dissent, this the remedy. As said in entirely different ford her an properly exception none can be no such case makes Laumeier majority opinion is major premise of the If, therefore, the made. case should be affirmed. the plaintiff cannot recover and
correct, the agree not however, comes here does dissent, case on the The binding 201, is case, a in Laumeier the the that decision court has whom the wife to a divorced authority effect that to the any provision for children, without custody of minor awarded the independent action maintain support, cannot by her furnished after of such past support divorce, power jurisdic- leaving court exclusive divorce any originally by provide tion to later order future suit for theory independent of such children —this on the that call for expenses already her does not by reimbursement any judgment review of court’s or involve alteration or the statutes the minor under or maintenance of necessarily sequence follows, think, we from the mentioned. independent be holding majority suit opinion that such power the divorce court in after maintained respect of the wards court has ceased to exist reason age. points out that becoming dissenting opinion full The brought in case, supra, proceeding Laumeier itself deals with a alter the have court review and court the divorce to provide for judgment of so as to former future granted, what a born after divorce was child an in- having the to maintain the divorced wife not said about supporting dependent past expenditures to suit recover argument. way It is also true that the child was obiter and McIntosh, Springfield of Gallion v. S. Appeals Court the case (2d) case was W. in the Laumeier decided after the change repeatedly rendered, held that such case did not action Appeals held all the Courts of that such distinguished That the Laumeier the wife could be maintained. case of minor children applying case as actions future judges relating past support, in that case all the arid Court concurred. (cid:127) says: dissenting opinion, quoting case, supra, Gallion from the money expenses already “As to incurred for which might asked, why not be we can see no reason common-law any jurisdiction. mind, our court of common-law To maintained way proceed. If the defendant appear it would the better in- fact that he has become plaintiff, liable it is because why she could not sue re- debted to and we can see no reason cover where could sue recover that debt she ’’ might her. debt he owe however, City Appeals, The Kansas Court of Thornton Thorn- ton, court in has construed the of this barring like this case, supra, the Laumeier support of wife to recover from the father for divorced If prevails, then custody. minor children committed to view *5 judg- sustaining was in the demurrer and the trial court ment here should affiirmed. dissenting opinion present
The case also holds whom majority opinion, in wife to the divorced custody was not of the maintain awarded could children ex- and husband from the father suit recover proceeding in the by penditures in but must do so such Rankin, 83 Mo. Rankin court, and is in conflict with divorce ease gives some a list of majority opinion this and App. 335. concedes The Rankin including Appeals, various Courts of twelve cases said, however, as is justified, ease, which it in conflict. This is with virtually overruled with and being in conflict reason of these cases Laumeier, supra. Laumeier Judge opinion Bond Rankin, supra, Rankin v. The case of in this first time question for the thoroughly considered this and from obtained a divorce “When the defendant is there said: State. It chil- making plaintiff a award of the under no wife, his of his former dren, left to the care and nurture them just it had as liability remained for their and education neglect . . . divorce. existed before the obtention charges statutory duty him from the m no wise relieves offspring. The divorce necessary of his others ... If a him from his children. from not divorce his does with the neces- party supplied third the children of defendant had prov- recovery without saries, might to that extent a have been had implied by for the fulfill- ing agreement than that further child, in this case there hence ment of the father’s to the money by the necessity furnished alleging proving no that the de- express agreement with the with an plaintiff was in accordance ’’ fendant. others, obtained the husband case, Rankin in a number
In this remedy of the state, that the and to hold the divorce another granting would be divorce in the court thé wife is proceeding practical denial relief. question at is- importance of
This conflict of subject. investigation law on this justifies further sue giving power like ours that under statutes can be doubt There provisions touch- make orders and granting divorces to to courts of the mar- minor children maintenance of the should, in all cases where divorces riage, the courts matters as so, orders jurisdiction do make such ^has welfare demand, keeping in view the of the case the circumstances are importance and that such prime as 'of the children parents and separation of the responsible for the parties to or however, recognized, It is relations. of their married severance this for want cannot do not and sometimes often do that cоurts suit, well as the parties children. The over granted divorces are children and the innocent court, overlook often to-wit, alimony things, only two with reference *6 998
may perhaps custody include question the the of the children. The support and maintenance of minor later. the children often comes practically agree
"We find that all case law and text writers the that in granted custody case divorce is parents and the the minor children provision is awarded to the wife with no made in the support, obligation decree their the the husband to support law, father his minor children remains at common although custody. is deprived 354; J. v. he their C. Biffle [19 Pullam, 54; 114 Louis, Mo. 50, 496; Keller v. St. 152 Mo. Bennett v. Robinson, 56; 576; 180 Mo. 212 App. Viertel, 562, v. Viertel Mo. Meyers Meyers, 155; 8 McIntosh, 91 Mo. v. Gallion v. S. (2d)W. 1076; Robinson, 703, 709; 268 Lukowski Robinson v. Mo. v. Lukowski, 108 App. 204, 209; App. Mo. v. Kempf, La Rue 186 Mo. 66; 57, Seely Seely, App. Robinson v. App. 639, 644; Chucart, Winner 176.]
In Pullam, 50, 54, Biffle v. “In court said: ease of a custody divorce in which wife, the is the children awmrded to the provision is not made for property out of the husband, he still remains support. Bishop’s liable for their [2 New Work on Marriage, 1221, & Separation, secs. 1210, Divorce and 1223.]” In 176, Winner v. Chucart, opinion by an “ J., weight ‘According this is said: reason of Trimble,
authority cases, prevails and the trend of the more recent the view granted wdiere is at the of the suit and the custody of the provision minor children is awarded to but no made in divorce decree for their mаin wife tain an action expenses to recover for husband support.’ her for their R. L. C. In State the our [20 480.] primary duty supporting upon father, children rests and the divorce of and mother does not determine that duty, regardless fact parents assigned. children is [Cases cited.]
“Nor plaintiff: required apply to the court wherein the granted divorce was for a modification of that before decree she could place, enforce recover. In the first decree was silent as to maintenance. Her demand for necessaries furnished does not contravene of the terms decree.”. L. In appended R. there A. extensive annotation Gully Gully (Tex.), saying: case of “The rule supported weight authority is that a father is not released obligation from his or contribute of his granted infant children reason of the fact that the mother has been him, from and has absolute of divorce been awarded making provision a decree for their maintenance.” Cases are twenty-six cited from states and from the federal English courts and sustaining courts proposition.
The fact that the willing husband and father has offered and was *7 to take custody of and support the minor child no is defense to (La the wife’s action v. Kempf, Rue 186 App. 57, 66), Mo. nor is fact that granted the divorce is fault, the husband for the wife’s custody where the actually child is awarded to the wife or re mains with her. 8 McIntosh, (2d) v. 1076; S. W. Winner [Gallion v. Chucart, 202 App. Mo. 176, divorce secured husband in Il linois; White v. 169 White, App. 19 40; Mo. J. Rowell C. 355.] [See v. Rowell, 97 16, Kan. 243, 154 Cases, Pac. Ann. 936 1918C, and note.] question procedure as to the available to the divorced enforcing against
wife in duty obliga- the husband and father his and tion to the minor children grant- in cases where the court ing the provision custody makes for the of the children they and remain with and supported are or awards such custody to the wife making any provision without
the children she supports and them.
The divorce statutes of this State generally (9 and other states R. 299; 341) C. 19 484, L. sec. J. provide C. shall, that the divorce court when a divorce granted, make care, such orders cus tody and the minor children as is reasonable, may, application on party, either make such alterations thereof may proper (Sec. from time 1355, 1929), to time R. S. review respect (Sec. 1361, order or in that R. S. 1929). statutory granting inheres court the di gives continuing power vorce and to enforce in favor of the wife the husband’s his minor children. ancillary remedy by procedure is now the that this It settled law cases, available to the the divorce case and court is divorced wife all whether the divorce at the time of the decree exercised power respect not, part only its it in exercised award any provision of the children to the wife but without 709; 268 support. Robinson, 703, for their v. Mo. Laumeier [Robinson 201; App. 119; 308 97 Shannon, Mo. Shannon v. Mo. v. App. 639, 703; 168 Robinson,
Robinson v. Mo. in 268 Mo. affirmed Cyc. 811; 352, 357, citing сases, 14 19 J.C. Missouri and 359.] however, remedy, and one which
The more ancient exists inde any statute, pendent is the common law action di person has, wife, who on the father’s vorced same so, supported children, may neglect to do recover from or refusal expended. 485, R. C. 301, L. sec. father the [9 amount 202 Chucart, 182, Mo. 301; Winner v. Supp. p. 4 sec. said, considerations, that, regardless of other “where the where it is 1000 divorce) (of question plain maintenance, silent on the present (independent) action, independent
tiff could maintain the Pretzinger Pretzinger, proceeding, recover;” of the divorce v. 452; Courtright 633; 45 40 Plaster Courtright, Ohio St. Mich. v. 290; 493; 47 42 Plaster, Holt, v. Ill. Holt Thomas v. Thomas Ark. v. 229; 41 Wis. 38 v. Buckminster, 248; Spencer Buckminster v. Vt. McCloskey 56; 335; 97 83 Spencer, Rankin, App. Mo. Minn. Rankin v. McCloskey, App. 393; Lukowski, App. 93 v. Mo. v. Lukowski Mo. 204, 209; Seely Seely, v. Other Missouri cases 362.] divorced wife to whom the of minor children is awarded can maintain the father an to recover past support by 119; Shannon, App. v. are Shannon Mo. White, App. 644; Robinson Mo. White v. (2d) App. 40; 1076; McIntosh, Gallion v. La Rue v. Kempf, App. 57, 66; Angel Angel, Chucart, Winner *8 support father, may upon
“Where the rests the he be re- quired support to contribute to the the children from and after application purpose; the commencement of an for that and made may by supplemental original action petition be motion or proceeding, or an suit.” C. J. [19 353.] custody In case the divorce decree silent both as to main- аnd tenance, mother, “where the children with remained the she has been held to be entitled to maintain an action the father for money expended supporting in them.” J.C. 353.] [19 wife,
Where the decree awards to the but is silent support, liability the husband’s “is not limited or controlled regulations governing alimony If, allowance of to the wife. such circumstances, neglects support them, under he refuses or the mother recover from him in an reasonable sum for necessaries furnished for their after such decree.” Many including C. J. Robinson v. Robin cited, cases are [19 354.] son, 703; Kempf, App. 57; Mo. La v. Bennett v. Rue Mo. App. Seely Seely, App. Mo. v. 116 Mo. Meyers Meyers,
In App. 151, the case of v. Mo. St. Louis procedure Court of held both or remedies methods of wife, saying: were.available to the “It will be observed that the de plaintiff, cree awarded the of the minor children to but noth maintenance; nothing was said about their was allowed to the . . mother or to them for future maintenance. .(cid:127) In Penn ingroth App. 438, Penningroth, v. this court held a father permitted for of his child when liable to his vdfe he it separation; Rankin, mother after and in Rankin remain with its v. was held this court that it ... the di whom the children had been left and who vorced with had main-
ÍÓÓ1 might moneys ly them, expended tained recover her. . . mother
“It has been held in a number cases that . may, subsequent term, motion, petition at obtain an order on compelling provide the father to with means cases.) all, (Citing most, In if the children. future statutes, rendered, States where were con- these decisions any cerning authorized time the final de- the court at after alimony of vary cree of divorce to the order modify marriage.” wife and the of the children of an for the relief As that was future advised, proper “with if so file a plaintiff, was denied leave application allowance for the future maintenance order remaining children.” minor construing strictly Appeals,
Later, the divorce, same Court continuing giving power and statutes mentioned the div'oree court touching alimony sup alter its and review orders failed, port of minor that where the divorce court held any instance, рrovision for the maintenance the first to make nothing minor was alter or subse children, there review court, consequently quent proceedings in that and that case by independent action and not subsequent to the wife must be relief procedure case. Lukowski motion or other in the divorce Seely Lukowski, App. 204; Seely, Lukowski, “In is said: Lukowski question be brought up appeal . . . same decision, we a decree divorce is
fore held where us alimony is made and the cus an allowance of favor of the wife and tody is silent as children is awarded to *9 judg children, or the there no order future maintenance of to the section that can be reviewed under in behalf of the children ment held, 1929), (now 1361, R. S. and Sеc. 2932, Revised Statutes circumstances, recover of the that, in such the wife ordinary law, money the she has neces at children, the an procure he be dead expended for maintenance if sarily ruling to his estate. We adhere this sum allowance Mayers, Mayers the disapprove is said to contrary and what App. 151.” Appeals St. was hold Louis Court It will be seen that the thus sup as to the the decree was silent divorce cases where that remedy only the avail port and past support. for their suit was the .wife able to case of disapproved this court the ruling, however, was This Robinson, Robinson v. thoroughly con- question was leads us to observe that wherein litigation arising the Eobinson divorce from the
sidered with award granted a to the wife divorce the decree to but was silent on alimony child of the minor the support. question of the child’s record shows that Robinson, In Bennett v. remarried, having years granted, wife, after the divorce was some past against her husband for the brought an to without which been awarded her support of his minor child had contended In case the defendant any provision support. for its di remedy a motion in the to the was only that the available wife on a modify was overruled to decree. This contention vorce case that the The court then noted the Missouri eases. consideration of proceed motion equally mother, privileged to father, with wаs or reviewed in of divorce altered otherwise to have “But, seen fit to allow the decree respect, and added: he has then sup wife has his to maintain as it was and allowed to remain obligation him, during upon rested port time that this the child of action recover on account hold that she now has no cause and to virtually ignoring rule believe, established would, thereof we be liability child with State to maintain the continues in this are, subject. on that We the father after a decree in divorce silent main therefore, properly held to be that this suit equivalent authoriz tainable, would be and that hold otherwise money paid by plaintiff for the benefit ing a civil suit for thereby de engrafted suit, on a also divorce defendant priving jury.” parties of a aby trial
Practically wife of Eobinson at the same time that the divorced past support him at of their minor child awarded sued Court decree, which action was sustained divorce divorce, Appeals, supra, she filed in the court also ancillary the court so to the a motion to have case, modify require pay to the the divorce decree as to husband monthly sufficient for the future and education wife a sum her. This case the Court of their minor child awarded to also reached 639), where this (Robinson con procedure defendant husband motion was sustained. independent action at law was the available that an tended сases, Seely and relied on Lukowski City they Ap holding, The Kansas Court of supra, did. held, Shannon, peals however, in Shannon had *10 remedy statutory motion .the case avail that the (the facts divorce divorced wife under similar decree be able to the question being This led to the ing support). case as to silent 703). (Robinson Robinson, 268 The Court certified here “All Appeals considering procedure said: the two methods question decisions in this State on hold -that the above this statutes merely law; grant- referred to are cumulative the common that the procedure child procure of this mode of to maintenance of the away obliga- not take common does from the father the law child, away provide tion maintain and for the nor taire from the person of the child or furnishing custodian child with right necessaries the father for This is sue the reimbursement.” a clear available to both remedies are the wife under proper circumstances and neither exclusive. (Robinson Robinson, 268
And when this case reached this court clearly 703), upheld, think, we of the wife to avail herself of either or both proper precise remedies under facts. The point modify power at issue was the of the divorce court to at a entirely question later term a decree of divorce on silent main ques tenance court held that the statutes enough power broad tion were confer as the аward ing custody ques of the children to the wife at least “touched” the maintenance, overruling Seely eases, supra, tion Lukowski Appeals point the St. Louis Court of on the that the common law this, action was exclusive. As this court said: “This rule law in mind, however, regardless borne proceed must be of divorce ings, parents living primary when both are sup for the liability is, State, minor child port of a as it was law, upon at common Viertel, the father. Mo. 1. c. Louis, Keller v. St. [Viertel illustrating l. liability Mo. c. Cases the enforcement 599.] frequent sequel proceedings more as a are far as in than dependent actionsThis court then refers the fact that the Court parties had affirmed the law case at betweеn the same fixing and used it as a past support criterion the amount to be support. on the motion the future awarded already will noticed that in a
It be number of cases cited it is given pointed out that the two remedies to the divorced wife to en- obligation support the father his force his minor children periods remedy by proceeding cover different fields or of time. The in the divorce case and court motion or otherwise looks to the child, law independent while the common ac- future support already deals wdth the furnished and to tion recover for ex- already incurred. The two penses remedies are coterminus rather begins and the one concurrent- where the other ends. than It is not remedies but use a choice between suitable to very remedy, nature of the From facts. common recovery is confined to maintenance al- divorced wife and cannot ready provide furnished used to future. *11 1004 modify Auer,
In Auer v. 193 926, 929, S. on a motion to W. decree, paid the court said: neces- “'Whatever has been out sary support of the minor mother or other child, whether against or a stranger, separate relative is recoverable in a father, by way modify change original but not of a motion to or of divorce. an properly plaintiff decree The court refused make ’’ past expenditures. allowance for the (2d) In Gal 8 McIntosh, 1076, lion v. law for action at past support, the court said: “The trial court held that she could maintain past, this suit to recover for necessaries furnished but refused make order future maintenance. The evidently that, support child, court held as to the future she proceed judg must under the a modification of the divorce statute clearly right. ment. In that think we the court . . . neglects support “When the father child, supported is it mother, by its divorced it often has been held that she State may sustain a common-law action the father to recover the (Cases cited.)” value the necessaries furnished. remedy origi
And motion for alteration or review of the by- nal operate can and afford relief for the future. The altered modified decree cannot be retroactive. [1 J.C. If either is denied under all condi 359.] 9 tions, complete justice accomplished. cannot be Angel In Angel, App. Mo. 360, 362, action at law for past support, the court said: “It is conceded plaintiff could recover in an action the reasonable value of necessaries already furnished the minor and of that fact there can doubt. That plaintiff go is as far as the could in this action. pro To secure vision support plaintiff future proceed must under stat ute and court where the divorce was rendered. Such proceeding” is a continuance of the action. [Robinson being true, That 711.] determine the matter of future remаins in the court where the decree of divorce was rendered and attaches to the divorce suit and cannot be determined in an [Worthington action. Worthington, App. 216; Mo. Wald, Wald v. 377; Laumeier v. S. W. 481.]” phase of this matter ruling is accordance with the court’s past as to the of the minor children committed to court, mother and which is in the of a nature debt to her from husband, the wife and husband compromise make a or con- binding tract which is on the wife in any action at law to recover past support. for such Kempf, Rue v. [La 67.] But as to the future of the minor children, which can be modify only by proceeding decree, taken care the divorce regard only, which has for the welfare of the children neither the father, combined, mother nor contract power nor both have agreement Kershner, action. to control the court’s Kershner v. App. 238, 241, proceeding’ where this is said: “While this motion) (by name in her No behalf. *12 rights
property It in is, as between her and defendant are involved. reality, speaks in of for as the interest the children whom she their guardian. plaintiff’s ... will It be seen that this more than is personal agreement; such, dispose of it cannot be allowed to right Infant chil- of the children for from the father. subsistence dren, want, by f he put in cannot be ather the claim that con- off has tracted with another and that that other aptly Marley, in Wier breached contract. illustrated v. 495, 496; Searritt,
Mo. Ex . . ex Parte . State Ellison, rel. 416.” Mo. chil- remedy
It of minor is obvious also that the for maintenance in re- respect dren divorce cases is in this from the different lating custody to since the latter in all eases relates the future. proceedings relating custody All minor children divorced of the of nothing parents past looks can with the future and have to do support. Consequently, proceedings when the have held that courts custody children, parents relating- to the of minor where the are di- ancillary proceeding in the vorced, must be motion divorce case granting merely classing divorce, and in the court looking looking' future, and, proceedings like procedure one in the minor must be had to the future maintenance granted which as Cole the divorce. Cases such case and the court Myrtle App. 228; Kohl, Cole, 89 In re State Porterfield, cited in the ex rel. v. custody case, which of minor children di-
Laumeier relate to than the divorce court and hold that no eourt other parents vorced merely affecting custody, follow the an action can entertain power to alter or granting divorce alone has rule that court custody and of the maintenance the future review its decree right point question not children, and are on the against maintain common action wife to the divorced past support the minor chil- to recover former husband is silent. Such lattеr suit does dren, as to the divorce any of such divorce de- alteration review or involve call for independent it. proceeds but cree proceeding was a of Laumeier
The case review and alter its decree divorce court to have the by motion after the of a child born provide as to divorce so future, such case over- looked necessarily divorce, and consider, looked, between' the distinction as it need did not procedure. kinds two of the divorced wife to maintain the husband and father of the minor child, as to which silent, the decree of divorce was to reimburse her expenses already past, her for such incidentally argu exceрt by way- was not before this court granting enjoin ment. The court the divorce was asked to Missouri alleged prosecution such action which it was had been pending York, of New commenced and was the courts but this court jurisdiction, declined to so for want of in do enforceable and this gave cident rise the discussion of the exclusive the divorce as to matters of and maintenance. that, when this said “whenever the effect of our statute And consideration, into this State is taken the courts of have held that m,ake affecting jurisdiction to or maintenance order's parents court, the divorced remains the divorce ” court, will in this State an action not lie if it meant to include the maintenanсe of an the divorced already recover for wife to of the children furnished *13 error, following implies, the next sentence then in as the court was subject fully on this our statutes were considered and discussed following perhaps other eases that such action is in [Meyers Meyers, maintainable the courts of this State. v. 91 Mo. 156; Seely 151, 643; Robinson Robinson, App. 639, v. Seely, App. 362; v. 116 Mo. Lukowski v. Lukowski, (2d) 1076; McIntosh, Angel Angel, Gallion v. 8 S. W. v. App. 360; Kempf, App. 57; Auer, La Rue v. 186 Mo. 193 S. Auer v. W. 926.] worthy
It is also that ease in note referred to this court Laumeier, supra, pending York Laumeier v. in the State of New parties, pending between the same finally there and reached the highest (Laumeier that Laumeier, state 237 N. Y. 654). N. A. L. R. That was an E. common against recovery law the divorced wife the husband for the money necessarily expended for support of their minor child granted provision sup divorce was with no after the made its port. opinion rights In that court said: “This child its has which disposed passed upon. brought have not the courts This brought herself; is not to recover the wife money it is money spent upon brought support to recover the maintenance and really brought child. It is the benefit of education A applied child. ... wife who has separate her in behalf obligation resting primarily of an purpose upon her estate him recover from may now reasonable amounts husband which separate out other expended discharge estate in has thus she of his obligation.
‘‘This is plaintiff the nature of action which the here seeks to asking looking maintain. She is not She is for relief future. moneys expended from the own father she has out estate for the child. If maintenance and education of his why stranger action, could maintain such 'an cannot she? jurisdictions. also finds of Missouri and other the State Robinson, Bennett v. that where a decree of held subject children, liability divorce is silent on the vigor, his minor remains in full common-law though custody. [See, also, their mother is awarded Robinson . large Mo. 703. . A are number of cases .]” ‘‘ cited from jurisdictions, said and then the court added: It is modify that the Missouri courts have their decrees so changed provide as to parties provide condition of or to for after-born and the authorities cited the state- sustain . . . Nothing, might ment. I it, take the Missouri courts constitutionally wipe obligation existing do could out an favor of stranger the father for his child. Such obligation also exists favor of the wife when she has expense far, therefore, which he should have met.” So as the case prevent of Laumeier be understood to actions, maintenance of this and similar it should not be followed. The result is the circuit court is reversed and the cause remanded. foregoing opinion Sturgis, C.,
PER CURIAM: The Division One, Banc, adopted judges as the Court en all of the concurring. *14 Young
The St. Louis Christian Association, Appellant, Men’s City Louis, as Assessor of St. al. 47 Fred Gehner, et (2d) 776. Banc,
Court en March