176 Mo. App. 673 | Mo. Ct. App. | 1913
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 the judgment, but subsequent litigation ensued between the parties in an endeavor to enforce the payment of the installments for maintenance so decreed.
It appears defendant transferred his property to his father, in fraud of his wife and to the end of defeating 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
Subsequently, plaintiff filed her motion in the maintenance case for an allowance of suit money and expenses of the litigation against her husband, and, upon a 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 given 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 question 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.
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 escaped 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 the 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, even though no exceptions be preserved with respect _ thereto. However, the rulings of the court on mere' motions interposed 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
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.