King v. King, 42 Mo. App. 454

42 Mo. App. 454 | Mo. Ct. App. | 1890

Ellison, J.

Plaintiff began this suit for divorce from the defendant, her husband, and custody of minor children, alleging, as grounds of divorce, indignities, consisting of alleged cruel treatment, opprobrious epithets and assault and battery. There was no cross-bill. The trial court after hearing the testimony dismissed the petition, and plaintiff appeals.

It is urged that the court erred in not permitting plaintiff to testify as to epithets spoken to her by defendant. Such matter has been several times held to be such a communication as falls within the spirit and terms of the law concerning the sacred and confidential relation existing between husband and wife. We rule the point against plaintiff. Buck v. Ashbrook, 51 Mo. 539 ; Miller v. Miller, 14 Mo. App. 418 ; Ayers v. Ayers, 58 Mo. App. 97. The cases cited us by counsel, as establishing a different rule, are .not thought to be applicable.

It was further objected that a daughter of the parties should have been permitted to testify as to what her mother, the plaintiff, told her after the assault and battery charged. It appears that the daughter was sleeping on the second floor and her father and mother on the lower floor. The testimony was heard and excluded. It was as follows: “I have noticed the treatment of my mother by my father. He was very abusive at times. On September 22, 1888, he resorted to violence. About twelve o’clock that night my mother came to my room, and I saw that she was in trouble ; she told me how my father had conducted himself. I noticed her face that night and also - the next morning. It was black the next morning. My mother told me how it became bruised. She said my father had become very angry over a conversation between them, and he sprang at her and grasped her by the throat and beat her in the face with his fists.” The reception of declarations of a party in his own behalf is exceptional, and, whenever claimed, the claimant should make 'it appear that such testimony comes within the rule concerning the res gestae. Looking at the testimony quoted, and conceding that the plaintiff left her room and went up stairs to her daughter’s room immediately after the beating charged, it does not appear that she immediately told her daughter how the bruises came on her face. The-daughter evidently rises the words black and bruise as the same, and it can be as well said that the mother told her next morning how the bruises came on her face as immediately upon going into her room that night. We, therefore, deny the objection.

Nor do we see any just ground for interfering with the court’s discretion as to overruling plaintiff’s application to continue the motion for new trial. An application for the continuance of a motion for a new trial is somewhat out of the usual order of procedure, but we cau see no reason why the trial court’s discretion as to continuances generally should not apply, at least, with as much force to an application like this. An examination of the reasons assigned in support of this motion has failed to satisfy us that there has been an abuse of discretion.

This brings us to a consideration of the testimony In the cause. It was given by witnesses personally present in court. On every material issue it is contradictory. It covers a space of some twenty-seven years of matrimonial life, involving considerable of trivial matter, but we may say that, if all that was shown in plaintiff’s behalf was conceded or admitted, it would entitle her to a divorce ; but when it appears, as it does here, that the testimony for plaintiff, on all material points, is met by that for defendant showing the matter in an altogether different light; and when it is further considered that much of this testimony, for either side, comes from members of the same family, all alike standing unimpeached and personally before the trial judge, it strikes us as being peculiarly one of those cases in which deference should be paid to his finding. In divorce cases it is our province to examine the testimony for ourselves, but at the same time, in a case of this nature, with evidence of the character of that presented in the record before us, It should be made clearly to appear that manifest error has been committed in the conclusion reached. Nichols v. Nichols, 39 Mo. App. 291. We shall, therefore, not disturb the judgment dismissing plaintiff ’ s petition.

It appears however, that after the trial of the divorce, resulting as before stated, and after an appeal had been granted to this court, the court below, on motion of defendant, awarded to him the custody of the four minor children, the custody of whom, plaintiff had asked in her petition. When the petition for divorce was dismissed, the parties stood as before the' suit was instituted, the father being the natural guardian, and entitled, ordinarily, to the custody of the minor children. But within the time permitted by law the plaintiff appealed her case to this court. Such appeal, in our judgment, brought up also the question of custody" of the children which was asked for in the-petition. The appeal should not have been interfered with by these supplemental proceedings, had by filing a motion in the cause. The illegal restraint of children,, or their custody, cannot be settled in this way. We, therefore, hold the order for naught and leave the parties standing as though it had not been made. But the judgment dismissing the petition and discharging defendant is affirmed.

All concur. Smith, P. J., and Gill, J., express no opinion on the ruling of the court in excluding the plaintiff’s declarations to her daughter as they do not believe such testimony, if admitted, should have changed the result. ~