170 Mo. App. 322 | Mo. Ct. App. | 1913
This is an action for divorce. A decree was- entered for plaintiff in the trial court. The affidavit to the petition is stated by defendant to be insufficient and jurisdiction of the court is denied. It is made on the plaintiff’s “best knowledge, information and belief.” The statute (Sec. 2371, E. S. 1909) requires the petitioner to state that the facts set forth in the petition “are true according to the best knowledge and belief of the plaintiff.” So the question is, is an affidavit that certain causes for divorce pleaded in a petition are true according to the affiant’s knowledge, information and belief, a compliance with á statute requiring an affidavit of knowledge and belief. If the insertion by the affiant of the word “information” qualifies the affidavit which the statute requires, such affidavit is, of course, insufficient. The evident purpose of the statute is to prevent any one
In order, as near as possible, to guard against any evasion of the law, great particularity is required in the oath complying with the direction of the statute —a, mandatory statute — giving the right to bring an action for divorce only on strict compliance' with conditions. The Supreme Court, in Hinkle v. Lovelace, 204 Mo. 208, states that: “The verification required to be made and annexed to the petition in divorce proceedings is a matter of substance, so much so that the court acquires no jurisdiction of the cause without it.”
In DeArmond v. DeArmond, 92 Tenn. 40, the following is said relative to an affidavit: “The peace and happiness of society largely depend upon maintaining the marriage relation, and the policy of the State is to encourage and maintain that relation. For the protection of society against the manifold evils that would necessarily flow from the wanton and indiscriminate severing of that relation, the Legislature has declared that divorces shall not be granted, except for certain causes, which are distinctly set out in the statute; and has prescribed what allegations shall he made in the bill or petition for divorce, and how the bill or petition shall be verified. All of these requirements of the statute are for the benefit of society, and not for the benefit of the parties. They are intended to guard against the bad faith and collusion of the parties. The application must show a clean and meritorious case under the statute before the court can take jurisdiction of the cause. The statutory affidavit is an essen
The particular defect in the affidavit in Hopkins v. Hopkins, 132 N. C. 22, is not stated. It was probably that nothing was said as to levity or collusion or of length of knowledge of charges or time of residence. [See syllabus in 43 S. E. 508.]
Burgess v. Martin, 111 Ala. 656, did not involve divorce proceedings, but it discusses the nature of an affidavit like the one under review. There, a bill in equity was verified by the affiant as “true to the best of his knowledge, information and belief.” In stating its meaning the court said: “This1, upon the construction most favorable to complainants means that the affiant has knowledge that some of the averments of the bill are true; that while he does not know, he has been informed and believes that others of the aver-ments are true; and that as to yet other averments, he has neither knowledge nor information, but without knowing the facts, or ever having been informed of their truth, he believes them to be true; and whether any particular allegation of the bill is within one or the other of these three categories is wholly uncertain and unascertainable from his verification.”
It is not necessary for usi to say whether that is a fair construction of the affidavit in that case. But, recognizing fully the jurisdictional, importance of an affidavit in conformity to the divorce statute as forcibly stated by our Supreme Court in Hinkle v. Lovelace, supra, and condemning all useless1 and unnecessary innovations, we have yet concluded the one in controversy is sufficient. As has been already said, the statute requires the petitioner to have knowledge of the facts he sets up or a belief of them; and as one frequently cannot have knowledge of all his charges, the. statute allows a belief. Belief of a thing, as distinguished from knowing it, is based on information. But as one may have information he does not believe,
On the merits of the case we conclude with the trial judge that plaintiff is entitled to a decree. The parties were married on the 20th of October, 1909, and a year thereafter a daughter was born. The evidence in plaintiff’s behalf showed many indignities offered him by defendant — indignities of such gross character as to render his condition intolerable. She assaulted him many times and she tore his clothes from him. She struck him in the face and on one occasion she spit in his face. She frequently called him coarse names. There are a great number of these incidents. Space forbids a detailed discussion of them; and it is unnecessary that we should do so, since defendant admits several, and others are. proved by disinterested witnesses. Two of these witnesses, whom defendant testified were friends of hers, testified that she assaulted him and tore part of his clothing off him.
Defendant denied the greater part of plaintiff’s charges as to her ungovernable temper and cruelties. She denied most of the indignities he specified she had offered him in her conduct, and her testimony showed many palliating circumstances. But the trial court was in better position to determine these things than is this court. While we must determine the facts for ourselves, we must, necessarily, defer largely to the trial court’s superior position for getting at the truth of the controversy. [Clark v. Clark, 143 Mo. App. 350.]
The judgment is affirmed.
