44 Mo. App. 600 | Mo. Ct. App. | 1891
Before entering into the merits of this
action we will dispose of a motion of an important nature which has been filed by the plaintiff who obtained the judgment below granting him a divorce from defendant. This judgment appears in the record as having been written on the day the finding was made. Defendant filed a motion for new trial on January 22, which was within four days after the finding against her. The court took this motion under advisement until January 31, when it was overruled. Thereupon, within sixty days from the time of overruling the motion for new trial, but more than sixty days after the finding was announced defendant duly sued out her writ of error. The motion now is to dismiss the writ of error as not having been taken out within sixty days after the judgment was rendered. The statute on this matter is as follows: “Sec. 4510. Appeals and writs of error. No final judgment or order rendered in cases arising under this chapter shall be reversed, annulled or modified, in the supreme or any other court, by appeal or writ of error, unless such appeal shall have been granted during the term of court at which the judgment or order appealed from was rendered, or unless such writ of error shall have been issued within sixty days after the order was made or judgment was rendered.” The contention of plaintiff is, that the sixty days begins to run from the day the case is decided, or the court’s finding is made and announced. In other words, the contention is, that upon that day the judgment is rendered. The defendant maintains that the final judgment, contemplated by the statute, is not had till after the motion for new trial is disposed of.
Technically and properly, the judgment of the court after its decision, or after verdict, should not be rendered until after the expiration of four days, in which
Another view sustains the position. The section quoted, and the one following, were undoubtedly enacted to prevent the interference with marital relations contracted after the judgment of the court decreeing a divorce. This is apparent from a perusal of the cases cited in Nave v. Nave, 28 Mo. App. 505. As, therefore, subsequent marital relations could not be contracted while a motion for new trial is pending, we conclude that no reason can exist consistent with the evident object of the statute, for denying a writ of error within sixty days after the disposal of the motion for new trial.
The difficulty we have met with in disposing of this matter has arisen from the opinion of the supreme court in Ham v. Schools, 34 Mo. 181, wherein section now 2275 was interpreted to mean that, a writ of error in ordinary cases must be sued out within three years from the date of rendering the judgment, without regard to the motion for new trial. It is evident that
Looking to the testimony in behalf of defendant the meagerness of plaintiff’s case more clearly appears. She states that she never refused to go into the Holcomb house, but that she strongly objected to doing so, as the house was near the railroad where tramps were frequently passing; that plaintiff at one time exhibited ill-founded jealousy, and the Holcomb house being rather public in its location, where many persons stopped, she feared a return of this feeling and thereby disgrace would follow. Plaintiff, while denying that he ever accused her of infidelity or thought her untrue, does admit that he referred to such matter to Bailey, for which he entertained regret. Other testimony makes clear that defendant did not object to the Holcomb house from a mere disposition to exercise control of her husband, nor from any evil mind; or from ill feeling towards plaintiff. Her grounds of objection were honestly entertained. So her dislike of Warner, though it may have been unjust, was an honest opinion.
While we have not set forth the testimony nor referred to all of it, yet the foregoing properly characterizes the whole, and we feel bound to say that the petition should have been dismissed. In the consideration of the case we have not been unm indful of the law that the husband’s residence must be that of the wife, and that he -should be permitted to select their joint abode.
We will reverse the judgment and remand the cause with directions that the petition be dismissed.