Pickel v. Pickel, 159 S.W. 774

Pickel v. Pickel

159 S.W. 774

Mo. Ct. App.

1913

Check Treatment

NORTON!, J.

This is a suit under the statute by the wife against her husband for maintenance, but the appeal here relates alone to the allowance of suit money and expenses incident to the litigation. On a trial of the maintenance suit, the court found the issue and gave judgment for plaintiff. By this judgment plaintiff was awarded $100 per month for the support of herself and minor child. No appeal was perfected from thе judgment, but subsequent litigation ensued between the parties in an endeavor to enforce the payment of the installments for maintenаnce so decreed.

It appears defendant transferred his property to his father, in fraud of his wife and to the end of defeаting her judgment for maintenance. Because of this, a suit was instituted in equity by plaintiff against defendant and his father to set aside such fraudulent conveyance and sequester defendant’s property, to the *675end of compensating the decree for maintenance. This snit wаs finally determined ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍by onr Supreme Court and is reported under the title of Pickel v. Pickel, 243 Mo. 641, 147 S. W. 1059. By its decree in the maintenance case—that is, the instant case—the court reserved power to make such further orders in the premises touching the controversy as should appear to be meet and proper. The statute (section 8295, Revised Statutes 1909) authorizes this course.

Subsequently, plaintiff filed her motiоn in the maintenance case for an allowance of suit money and expenses of the litigation against her husband, and, upon а hearing, the court awarded the' same to her. It is from the order and judgment on this motion for suit money that the present appeal is prosecuted by defendant. Prom what has been said, it appears the appeal is prosecuted from a judgment for suit money givеn on a motion in the maintenance case. This being true, it is entirely clear no right of review obtains here, for the reason defendant saved no. exception to the ruling of the court on such motion. Moreover, the motion is not preserved in the bill of exceptions. In such cases, an appeal is allowed from a ruling on a motion in the case because it is final and determines the questiоn at issue, as though in a separate and distinct proceeding, but, nevertheless, an adjunct to the principal cause. [See Steele v. Steele, 85 Mo. App. 224; State ex rel. v. Seddon, 93 Mo. 520, 6 S. W. 342.] •But though such be true, the appeal is not from the. final judgment. On the contrary it is from the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ruling on the motion in the case, and, therefore, presents a matter of exception. [Steele v. Steele, 85 Mo. App. 224; Curtis v. Curtis, 54 Mo. 351; In re Howard Estate, 128 Mo. App. 482-490, 106 S. W. 116.] Indeed, where the question arises on a motion in the case, it may not be reviewed on appeal in any instance unless an exception appears to have been saved to such rulT ing. [See Lilly v. Menke, 92 Mo. App. 354; Grraff v. *676Dougherty, 139 Mo. App. 56, 120 S. W. 661; Bateson v. Clark, 37 Mo. 31.] It is, therefore, essential that both the motion itself, upon which the ruling is made, ■ and the exception to the ruling should be preserved in the bill of exceptions as a prerequisite to review on appeal. [See Graff v. Dougherty, 139 Mo. App. 56, 120 S. W. 661.]

By the command of the statute (section 2081, Revised Statutes 1909), the appellate court is precluded from reviewing any exception which shall not have been expressly decided by and saved in the trial court. This arbitrary ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍rule of the statute is one which may not he evaded or esсaped through the operation of any rule of court on the subject, for the statute is of superior authority in that behalf. [See Serrano v. St. Louis & S. F. R. Co., 150 Mo. App. 607, 131 S. W. 371.] Here it appears defendant not only omitted to except to the ruling of the trial court on the motion, but he has omitted, too, to preserve the motion for suit money in the hill of exceptions. This being true, we are precluded from reviewing the arguments advanced for a reversal, for they all pertain to mat.ters of exception.

The record proper consists of thе petition, summons and all subsequent pleadings including the verdict and judgment, and these matters the law has made it our duty to examine and review, еven though no exceptions be preserved with respect _ thereto. However, the rulings of the court on mere' motions interpоsed in the case are matters of exception only and unless the motion itself is. preserved in the bill and an exception to the action of the court in ruling thereon, the matter is not open for review here. [Graff v. Dougherty, 139 Mo. App. 56, 60, 61, 120 S. W. 661.]

It is true there are certain motions which may he reviewed on appeal even though ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍no exception is saved ór no motion for a new trial appears; such, for in*677stance, as a motion to strike out an entire pleading, which is equivalent to a demurrer,' as will appear by reference to O’Connor v. Koch, 56 Mo. 253; or such as go to the whole cause and aim to' dispose of it without trial, as in Aultman v. Daggs, 50 Mo. App. 280, 288; and there are other motiоns—that is, after-judgment motions—which may be reviewed though ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍not called to the attention of . the court in a motion for a new trial. [In re Howard Estate, 128 Mo. App. 482, 490, 106 S. W. 116.] But it is obvious the motion here is not of the class which, it is said, is tantamount to a demurrer or of that which goes to the whole cause with a view of disposing of it without a trial. It is true this motion is an after-judgment motion and is to be distinguished on that ground alone from the usual motion in a case. Such motions—that is, after-judgment motions—it is said, stand upon a different footing, in that they may be reviewed on appeal though not called to the attention of the trial court in the motion for a new trial. Obviously this is for the reason that motions of that character comе into the case, as this one does, long after the motion for a new trial is disposed of. But be this as it may, such after-judgment motions, though subjeсt to review, on appeal, without regard to the motion for a new trial, through the office of which all matters of exception preserved during-the trial are usually accumulated for review, present, nevertheless, matters of exception. In this, too, such аfter-judgment motions seem to stand: upon a different footing from that occupied by motions interposed during the trial, for exceptions as to the latter, and, as a rule, all exceptions, to be reviewed on appeal, should be accumulated in the motiоn for a new trial and may not be reviewed unless they are. But, it is said, though after-judgment motions that are reviewable at all may be reviewеd on appeal without a motion for a new trial, they are, nevertheless, motions and not to be reviewed unless, an exception is *678duly saved to the ruling of the court thereon. [See City of St. Louis v. Brooks, 107 Mo. 380, 18 S. W. 22; In re Estate of Howard, 128 Mo. App. 482, 490, 495, 106 S. W. 116; Graff v. Dougherty, 139 Mo. App. 56, 120 S. W. 661; Ecton v. Kansas City, etc., R. Co., 56 Mo. App. 337; Corby v. Tracy, 62 Mo. 511.]

No exception having been brought to the attention of.the trial court touching its ruling on plaintiff’s motion for suit money, none may be reviewed here.. The judgment should therefore be affirmed. It is so ordered.

Reynolds, P. J., and Allen, J., concur.