96 Mo. App. 553 | Mo. Ct. App. | 1902
A judgment was entered in this ac
Only the record proper was brought up and that without a motion for a new trial or in arrest of judgment having been filed, appellant’s contention being that the petition omitted an essential allegation, to-wit: that his abandonment of the plaintiff was without good cause, on account of which admission it is insisted the judgment must be reversed.
Judgments as to what defects and omissions of a pleading will be fatal after verdict and what are cured thereby, have never been harmonious either in England or the United States.
There are English cases holding that an entire failure to state, even defectively, a fact necessary to the plaintiff’s recovery is aided by verdict; while others hold that the defect is only cured if the fact can be gathered by fair intendment from other allegations contained in the pleading. 1 Chitty’s Pleadings, 795.
A like diversity of opinion appears in the American cases; some holding that if a fact necessary to recovery is entirely omitted, the judgment may stand, as it may be presumed to have been proved at the trial as indispensable to the decision given (Stanley v. Whipple, 2 McLean 35; Brent’s Excrs. v. Bank, 1 Peters loc. cit. 93), while others hold that the omission is fatal if it is one of substance. Garland v. Davis, 45 U. S. loc. cit. 131.
The decisions in Missouri exhibit the same discrepancy, some of the earlier treating the omission as cured by verdict if the omitted averment was of a fact which must have been proven to authorize the
Nor is it necessary that a motion in arrest be filed in order to raise the question on appeal. Weil v. Greene County, 69 Mo. 281; State ex rel. v. Scott, 104 Mo. 26; Lilly v. Menke, 126 Mo. 190; McIntire v. McIntire, 80 Mo. 470.
The law on the subject in this State has been influenced by the construction given the section of the code which provides that an objection to the petition on account of the insufficiency of the facts alleged to constitute a cause of action, shall not be deemed waived because not taken by either demurrer or answer. R. S. 1899, sec. 602; Welch v. Bryan, supra. By virtue of that section and also of the one (sec. 866) requiring the supreme and appellate courts to examine the record of an appealed cause and award a new trial, reverse or affirm the judgment of the circuit court, or give such judgment as it ought to have given, the rule has been prescribed that errors patent on the face of the record proper may be examined though no motion in arrest was filed, and the judgment reversed if any of a fatal character be shown; and the failure to state facts in the petition sufficient to constitute a cause of action is held fatal. Weil v. Greene County, McIntire v. McIntyre, State ex rel. v. Scott, Lilly v. Menke, supra.
In this way the eighth and ninth clauses of our
We are forced then to inquire whether it is a just implication from the contents of plaintiff’s petition that defendant abandoned her without good cause. In doing this, we shall decline to take as technical a view of the averments made as we would were the pleading an indictment instead of a petition, though appellant insists on that course being followed. But both by the statutes regulating practice in criminal cases and the decisions construing them, as well as by immemorial law, greater strictness of averment is required in criminal than in civil pleadings.
The petition does not formally state that defendant’s abandonment was without good cause; but it does aver plaintiff had faithfully demeaned herself as his wife and at all times treated him with kindness and. affection, and that the defendant, wholly disregarding his duty as her husband, willfully and maliciously abandoned her, and has ever since refused to provide for and maintain her although able to do so.
The existence of a cause which would*have justified the defendant in abandoning the plaintiff, if her conduct was as alleged, is hardly conceivable, especially, as according to the petition, they had lived together for about two years when the abandonment occurred; nor is it easy to discern how an abandonment for good cause could consist with the act being malicious. We think the inference is unavoidable from the allegations made, that defendant abandoned the
Without quoting from them, we will cite some cases in which the averments made, less cogently supported the inference of an omitted fact than do the averments in, this petition, but were, nevertheless, held to sufficiently imply such fact to uphold a judgment. Roper v. Clay, 18 Mo. 383; Shaler v. Van Wormer, 33 Mo. supra; Jones v. Louderman, 39 Mo. 287; Falls v. Daily, 74 Mo. 74; Cobb v. Lindell Railway, 149 Mo. 135; Heman v. Allen, 156 Mo. 534; Buck v. Railway, 46 Mo. App. (K. C.) 555; Murphy v. Ins. Co., 70 Mo. App. (K. C.) 78.
The judgment is affirmed.