98 Mo. App. 427 | Mo. Ct. App. | 1903
This suit is on a petition to modify a decree rendered by the circuit court on the 13th day of 'January, 1899, wherein the same adjudged the care and custody of an infant male child, then twenty-two months old, to the mother, Lulu E. Kraus, said child having been born during the marriage relations between plaintiff and defendant, and awarding that defendant pay to plaintiff on the first day of each month the sum of fifteen dollars to be used for the care and keeping of said child, said payments to continue until it reaches the age of six years, if it should live so long and remain in the care and custody of plaintiff, at which time the court might make such further order affecting the maintenance of said .child as shall then be deemed right. The grounds of the petition are that said child is neither the progeny of the plaintiff nor that of the defendant; and that plaintiff fraudulently at the time of its supposed birth imposed said child upon defendant as that of her own, when in fact it was a foundling of unknown parentage. The defendant complied with the order of court and made the monthly payments for the care and custody of the child until the month of March, 1901, at which time he claims he learned that it was not born of the wedlock between himself and the plaintiff when he discontinued such payments.
One of the principal witnesses was one Amelie Bethman who stated that about the 2nd day of March, 1897, she went to defendant’s residence in Kansas City, Missouri, at which time she saw the plaintiff and a Miss Ritter, a hired girl. Plaintiff then told her that she (plaintiff) must have a baby, as her husband thought she was pregnant; that she had padded herself with cotton to lead him to so believe; and that as her husband did not treat her well, shé thought if she could
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Mary Ritter, the house girl named, testified that she went at plaintiff’s request to Mrs. Bethman for the purpose of obtaining an infant and made an appointment for a meeting between them; that she was not present at such meeting but that Mrs. Kraus told her that the Bethman woman had promised to bring her a baby soon; that at this time plaintiff began to make preparations to deceive her husband and make him believe she was with child; that in about two weeks thereafter Mrs. Bethman brought the child in question; that after the child appeared and at about three o ’clock p. m. of the same day, at plaintiff’s request she went to a grocery store and telephoned defendant to come home; that he came shortly thereafter and asked witness how she got Mrs. Bethman so quick, whereupon plaintiff had spoken up and said: “I had Yal stop a
On the other hand, the plaintiff testified that, she was the mother of the child and the defendant its father, her testimony being confirmed by that of her mother and other women friends, as follows:
Mrs. Margaret Frame, who had known plaintiff for many years, testified that in the fall of 1896 plaintiff was sick, throwing up her victuals, as women sometimes do in cases of pregnancy, and that she called her attention to her symptoms and that plaintiff then admitted she was pregnant; that she constantly visited her and that she was getting heavy and fleshy. Mariah Ellis testified that she had known Mrs. Kraus for ten years or more; that in the fall of 1896 she noticed that plaintiff w,as sick at the stomach, at which time she ac
The pleadings in the original divorce suit were in evidence and the answer and crossbill of defendant alleged amongst other things that the child in controversy was born of the marriage relationship, and that plain- • tiff was not a suitable person to have it in care and custody and defendant asked that it be turned over to him.
We have given only a general outline of the testimony in the case, but we think sufficient for the purposes thereof. The court overruled defendant’s application and he has appealed to this court, insisting that the evidence clearly showed that the child was not the offspring of the plaintiff and defendant.
It is obvious that more or less perjury was committed at the trial, because the evidence of witnesses on both sides could not be true, and that of one or the other must therefore be false. The duty of passing upon the credibility of the witnesses was a matter for the trial court, especially of those for the plaintiff who were present and testified in person. The positive testimony of the witnesses for the respective sides did not greatly preponderate either one way or the other, but the circumstances taken into consideration amply- sustains the finding of the court. One of the most remarkable of these circumstances was that the defendant living-in
But aside from all this, there is one fact that must be controlling: the defendant in his said cross-bill and answer to the divorce suit used the following language: “Defendant further says that there was born during the time of the existence of the marriage relationship between plaintiff and defendant, to the plaintiff a child, a boy now about twenty months old, ’ ’ of which he asks the care and custody. If he entertained the suspicions
For the reasons given we affirm the finding and judgment of the trial court.