McIntire v. McIntire
80 Mo. 470
Mo.
1883
Check Treatment
Martin, C.

The plaintiff sued for a divorce, alleging that the defendant had offered to her such indignities as rendered her condition in life intolerable, also indicating the character of the indignities. The defendant denied the charges against him, and by way of cross-bill asked for a divorce on the ground of cruel and barbarous treatment inflicted upon him by the plaintiff. There is no bill of exceptions in the case, and we are necessarily confined to the record in our review of errors.

The trial resulted in a decree of divorce in favor of the defendant against the plaintiff'. It gives the custody of the child to the plaintiff, and concludes as follows: “And the court further orders, adjudges and decrees, that the said plaintiff have judgment for and receive of said defendant the sum of $1,000 for alimony, and that she have execution against the defendant therefor.” This writ of error is prosecuted for the purpose of reversing so much of said decree as adjudges alimony in favor of plaintiff. This is an extraordinary decree, which gives a divorce to the defendant *472and a judgment for alimony to tbe plaintiff. Tbe right of tbe court to adjudge a divorce, as well as to order payment of alimony, is conferred upon it by statute. Permanent alimony can be adjudged only as incident to a decree for a divorce, and tben only in favor of tbe wife when sbe is the prevailing party. Doyle v. Doyle, 26 Mo. 545; R. S. 1879, § 2180.

How can tbe decree in this case be justified in face of tbe statute, which declares that: “ In all cases of divorce from tbe bond of matrimony, tbe guilty party shall forfeit all rights and claim under and by virtue of tbe marriage.” R. S. 1879. § 2182. Section 2179 was never intended to authorize permanent alimony in favor of tbe wife, except as incident to a decree of divorce in her favor. She may have alimony pendente lite, which is necessarily before final decree. But this can be given only as incident to tbe suit and under tbe provisions of tbe statute. Under tbe law as it prevailed in tbe revision of 1855, alimony pendente lite was accorded to tbe wife only when sbe was plaintiff R. S. 1855, § 8, p. 662. Tbe right of tbe court to decree alimony pendente lite to her when sbe was defendant, was denied by tbe Supreme Court. Morton v. Morton, 83 Mo. 614. On account of this construction of tbe statute- of 1855, tbe section was subsequently amended so as to authorize an order for alimony pendente lite whether sbe was plaintiff or defendant. But this clause, as it now reads, has no reference to permanent alimony, which attends a final decree in favor of tbe wife. Of course a husband has no claim for alimony, however tbe decree may go.

It does not appear that tbe defendant made any motion in arrest of tbe judgment against him, and tbe question arises whether be can urge in tbe appellate court tbe error now assigned by him for reversal. Tbe decisions on this point have not been uniform. It has been laid down in broad terms that a motion in arrest was necessary in order to give tbe trial court an opportunity to correct its error before resorting to tbe appellate court. Railroad Co. v. *473Mahoney, 42 Mo. 466; Banks v. Lades, 39 Mo. 406 ; Haskell v. Sullivan, 31 Mo. 435.

In the ease of Richardson v. George, 34 Mo. 104, the Supreme Court refused to reverse or correct a general judgment rendered against a sub-contractor, or against the contractor and the owner of a building for which materials had been furnished by plaintiff, because the motion in arrest did not particularly indicate the error which was necessarily apparent of record. This decision did hot please the reporter, and he appended to it a learned note, which has finally prevailed against the decision. In State v. Marshall, 36 Mo. 401, Judge Holmes considers the question and dispenses with the necessity of a motion. In. Miller v. Davis, 50 Mo. 572, Judge Adams says: “ When a case is brought here without any exceptions or motion in arrest, or for new trial, we can only look at the record proper for errors, and can only reverse for such as are not cured by the statutes of amendments. When the plaintiff, by his own petition) shows that he has no standing in court, and yet obtains a judgment against the defendant, that is an error which this court must entertain, and for which the judgment must be reversed.” The question was considered by Judge Wagner in Bateson v. Clark, 37 Mo. 31, and more recently by Judge Sherwood in Sweet v. Maupin, 65 Mo. 65, in which the prior authorities were elaborately reviewed on a motion for a rehearing.

It may be safely. asserted that the appellate court will reverse for fatal error apparent on the face of the record, although no motion in arrest or for review has been made, such for instance as that the court has no jurisdiction of the cause or parties, or that the petition fails to state a cause of action. There may be defects and irregularities apparent of record, but the appellate court will not always reverse on account of them. It has refused to reverse for errors of misjoinder of parties and causes of action. Ames v. Gilmore, 59 Mo. 537. When the defects and irregularities do not fall within the designation of material errors, they *474cannot be taken advantage of in the appellate court, although patent of record, unless they have been brought to the attention of the trial court by appropriate motion or exception, as the case progressed. Lawther v. Agee, 34 Mo. 373. When a motion in arrest is necessary to bring such defects or irregularities before the appellate court, the motion must be preserved by bill of exceptions. Marquis v. Clark, 64 Mo. 601; Baker v. Loring, 65 Mo. 527 ; Blunt v. Zink, 55 Mo. 455.

In the present case the error is not only apparent of record, but it is a material one which discloses a judgment in favor of a party who is not entitled to it upon the record made by the pleadings and proceedings in the case. The court having adjudged the divorce in favor of the defendant, had no jurisdiction to render a decree for alimony in favor of plaintiff. This error is palpable, and may be corrected on writ of error. Accordingly it is ordered that the decree be reversed and the cause remanded, with directions to the court below to enter judgment in accordance with this opinion.

All concur.