*1 COURT OF MISSOURI, Stripe v. Meffert. unjust “grossly inadequate verdict.” But, P. J., Donnell, was said supra, Woodward Reynolds, page involving of serv- case value “Certainly ices rendered a dentist’s assistant, such employment not so of is common or the value such serv- knowledge ices so within the of that common all men, juries presumed courts are to be value know any proof And thereof.” so in the at bar, without case plaintiff per- the reasonable value of such services as knowledge not matter of such formed is testimony common upon subject unnecessary. We there- against plaintiff point. fore on hold Respondent in its brief deals with but of few assigned argument by plaintiff, advances errors but proof by plaintiff, that there was total failure of he performed canuot recover extra work for absence express of an contract therefor, that the services presumed paid performed.by him were to be for salary regular per unnecessary annum. It is $7500 upon pass phases us to of the case, those other than as herein to. adverted nothing
After a careful review of record we find justify judgment an interference with the accordingly All affirmed. concur. MEFFERT STRIPE,
FREDERICK A Minor, b y A. SHANNON, JAMES His v. ANNA Guardian, MARTIN MEFFERT, E. LAWSON and SILVIA C. Appellants. BARRICK, April One,
Division 1921. Special Incomplete Verdict: Determination: TRIAL: Motion 1. verdict, leaving special New Trial. there is a Where some determined, a motion for a new trial issues to filed within days determination, timely after their filed. four Supreme de Novo in Court. Where APPEAL: Trial a case 2. equity acquiescence an in the trial case treated court as n object being plaintiff, cannot and consent of the so appeal, therefore will limited to on this court not be treated TERM, OCTOBER Vol. law, may try questions de novo
consideration the facts. Adultery: Legitimacy Divorce:
3. ILLEGAL MARRIAGE: Children. *2 342, 1909, provides “the issue of all Statutes that Section Revised by marriages be divorce shall null in law or dissolved decreed may legitimate legitimate.” the within In order be that a child marriage only statute, meaning not a this must of there been marriage parents, would null but such a be decreed between the by proceeding equity in law dissolved in in divorce between or a marriage reason, equity, In an action to annul a for them. knowingly divorce, parties adultery, or lived there both marriage neither an would no to annul and would be innocent be hands, injured party; court clean neither into or come marriage granted is no be either. Unless the relief could parents honestly, innocently by or entered into one both contemplated by good marriage a faith is such as is section.
4. OF Revised LEGITIMATION CHILDREN. Secion Statutes 1909, provides having by man, child that “if a woman a or chil- a dren, recognize intermarry shall afterward shall with her and such legitimated.” thereby his, they to be child or children shall relationship applies parties This cases between where illegal the time the was conceived and criminal as child subsequent legal marriage parents. a both In such case necessary legitimacy. recognition is Guilty Knowledge Adultery: —.-: of Parties. evi- 5. Where parents knowingly guilty dence showed both ligitimate adultery, the child cannot be held under Section 342 subsequent all, unless has not under Section 341 there been recognition accompanied by marriage parents between father. - n — : Presumption. -: In cases Non-Access: where the paramour question husband the mother is the whether is required of the husband the non-access to be of the father child/ convincing otherwise, presumption proof; clear shown husband, paramour, is the not the father. is that the Court. —Hon. Circuit Allen C. from Jackson Appeal Southern, Judge.
Reversed. é Fox Moore
Lathrop, Morrow, George W. Day for appellants. tried in the court The case below as one
(1)
bound
parties are
theory.
Har-
equity;
OP MISSOURI,
SUPREME COURT
v.
225;
Beckmeir,
Mo.
Roselle
Toms,
wood
(2)
Mo. 380.
The motion for
trial
filed in
filing
ne-w
which,
time. The cases
that the time for
hold
trial
motion
should be reckoned from the
new
date
if the return of the verdict and not from
date of
judgment
are cases in which the return
(3)
judg-
verdict
marked the close
trial.
upon
finding
only
ment here can be
sustained
showing
there is
record
sufficient evidence
Joseph
marriage
P.
between
Meffert and
Anna
R.
Marie
which the
deems null.
law
S.
(4)
parties
sec. 342.
Unless
least
of the
alleged
good
to an
enters it in
common-law
party
believing
competent
faith,
tract’marriage,
the other
to it
to con-
par-
the issue of the cohabitation of the
legitimate.
ties
v. Green,
Green
(1) This case due came on course for trial, as a jury although appellants case, and insisted that was equity by jury, objected an case triable to a jury respondent equally the trial, insistent that it jury upon jury. was a case insisted a trial to a respondent court took the view of tried jury case; as a action of the court after the return jury of the verdict was influenced and induced appellants respondent. Respondent and not 369 1920. TEEM, 287], OCTOBEE Vol. y. Stripe Meffert. nothing point as to him there raise the
desires
proper
its
before
court for
considera
but the record
petition
claim
nor
answers
tion. Neither
equitable rights
respondent, any
nor
as to
invokes
powers
That in
chancellor.
fact
exercise
petition
clearly
action
an
and answers
show
jury.
219
Kline v. Greeschner,
to a
action
law triable
Hays McLaughlin,
263;
217 S:
New
S. W.
v.
W.
652-;
brough
v.
202
549;
v.
Hunter
Moore,
Moore,
202 S. W.
205
Mo.
Howland,
581,
S.
Koehler v.
275
S. W.
545;W.
Tracey
Copp'age,
v.
38;
Bond,
213
Dowd
v.
S. W.
219;
Thomp
254;
199
v.
208 S. W.
954;
Theiss,
S. W.
Bacon
404;
213 Mo.
son
253 Mo.
Lee v.
Stillwell,
89;
Conran,
v.
Wimpey v.
208
Tolar v.
58;
Edwards,
Lawrence,
S. W.
249
Mo. 563;
Mo.
228
Miller v.
158;
Burton,
Minor v.
Lloyd, 204
192
2:58;
Gaffin,
228;
W.
Brooks v.
Mo.
S.
Murray,
183
84;
256
Minicum v. Solar,
Hauser v.
Mo.
S.
195 W.
Boberts,
1021;
W.
Brook v.
Coulson
1037;
S
Brents,
1144;
196 W.
Brandt
v. Le
v.
177
Plant,
S.
McLarty Griggs,
391;
222
377;
S.
v.
S. W.
W.
Brooks v.
220
Trust
v.
Eoberts,
11;
S.
St. Louis Union
Co.
W.
Wynatt,
Mooneyham
222
S.
v.
Hill,
435;W.
S. W.
(2)
liberally
E.
Sec.
S.
should be
con
requirement being
child. The strict
strued
favor
paternity.
only
Blythe
v.
512';
Wis.
Owens,
Watt
Shipp,
Byers,
v.
L. E. A.
In re
40;
168 Cal.
Legion-of Honor, N.
73;
Brown v.
78 W. Morin
641;
Holiday,
App.
30 Ind.
201. Children are unconscious of
criminality
thereof does not affect
*4
passing upon
it to
their
them, nor is
be considered
Dyer
legitimacy.
404;
66 Mo.
Brannock,
claim to
v.
Keeling,
v.
178;
14 Pet.
Stones
5 Call.
Bloucher,
Brewer v.
(Va.)
391;
v.
90 Va.
Leonard Bras-
143;
Hile,
Heckert
v.
Wright
Ky.
619; Harris
Lore,
v.
12 Ohio
528;
99
St.
well,
Ky.
7
Jackson,
85
Hartwell v.'
Tex. 579.
Harris,
49;
v.
carry
out
humane
should be construed
The statute
purpose.
Mayes, 121
45;
v.
Tenn.
In re
Turnmier
Jes
Munger,-61
Christopher
supp,
513;
v.
Fla.
408;
81 Cal.
3
Lincecum,
441;
Johnson,
Lincecum v.
Mo.
Johnson v.
370
OP MISSOURI,
COURT
y.
Meffert.
Harvey,
v.
35
80;
276;
30 Mo.
Buchanan
Mo.
v.
Nelson
245 Mo.
Evatt
114
Jones,
597;
v.
Ark. Mund
Miller,'
84;
Colo;
Ky.
v.
v.
134;
Brasswell,
51
Leonard
99
Rebanme,
Hutchins v.
Mich.
v.
533;
Kimmell,
-132;
31
Morris Wil
557;
39
St.
Owens,
Ohio
Watts v.
62
liams,
Wis.
(3)
of
trial,
The verdict marked the end
as it
settled all the issues of fact and left the court no alterna
except
judgment
plaintiff
grant
tive
to enter
trial;
new
and defendant’s failure to file such motion
days
appeal
four
within
brings
after verdict
means
except
nothing
proper,
here for review
the record
assigned.
and as
that no error is
R. S. 1909, secs.
Whaley,
1988,
1990;
v.
property equitable alleged, sued for. No title equitable prayed petition. nor relief face of general
The answer defendant Anna Meffert was a denial. The answer of defendant Lawson, besides a general plaintiff denial, averred that neither nor defend- Sylvia ant C. Barrick interest, but that said Joseph as executor last will of Lawson, P. Mef- fert, deceased, will, under said holds the entire fee- simple title for his co-defendant, Anna Meffert. De- Sylvia C. fendant Barrick’s answer was to the same purport as the answer defendant Lawson. appeared jury open-
After the was sworn plaintiff’s from ing parties statement of counsel that both Joseph under claimed said F. Meffert, aas common title. source of That claimed he was the son born Meffert, with Mrs. *5 TERM, 1920. Yol. OCTOBER
Stripe v. Meffert. Stripe, Mrs. Marie while said wife of was the legitimate Stripe, hut his was, nevertheless, William H. child under Section Revised 342, Statutes thereupon objected trying
Defendants be- jury, they try equitable fore a because “don’t matters.” objection, The court defendants’ but submit- overruled special questions, jury following ted to the which jury in the answered follows: affirmative, “Question No. 1. on or Was about September Joseph F. 1914, Meffert Anna 3, between Stripe? Marie foregoing jury, question,
“We, the answer the. Yes. L. “A. foreman. Williams, “Question No. 2. Frederick Is Meffert marriage? issue of said
“Yes.
“A. L. foreman.” Williams, Upon coming in of the court verdict, made following entry on the record: appearing that there are to the court “And now it discharged jury is the said cause, this further issues the cause, further consideration from ” morning 9:30 a. m. tomorrow until continued cause is jury, appears the evidence-before from It That mother his 6,1915. born October spring early when years old about many Joseph who was Meffert, Dr. F. met first physician City, practicing years in Kansas been Liberty, City, coming Missouri. Kansas and before H. living W. husband, with her was then She doing work for carpenter who contractor, owner of some means man who awas Meffert, -City. At time, in Kansas of houses of a number respectively daughters aged about Strip.es little two eight years. They and Indiana 27th four and lived Prospect Avenue. at 1622 resided Dr. Meffert Avenue. lived wife divorced daughter Liberty. and their former wife His SUPREME COURT OP *6 only Liberty. Stripes child, Anna lived Meffert, Jersey, January in Mrs. married 1903. New Stripe property when her been left some father died. years She then sixteen old. never attended the She public private schools, but schools, was educated and graduate of--College, highest was also a one country. colleges young class Her women husband, was interested with his brothers, guardian, manufacturing whom was her a establish- and ment, invested'and lost inheritance the busi- They ness. then and moved west been in Kansas City years for several before she met Doctor Meffert. They became their enamoured of each other at first meet- ing early spring Thereafter, of 1913. he made love to and until went to live with the her, doctor September clandestinely on often 3, 1914, met and knowledge. happened without her husband’s' This two or three a week. She was in times love with Meffert as much as he was with her. She of these tell did not her husband
meetings with doctor, because “I knew what disposition wrong, a it he had.” She also knew was Stripe. because she was married to Over defendants’ objection incompetent testify that sho to to her agreement Meffert, with said because he was and dead through agreement, claimed under said and testified, as follows: On 1914 she September went at the to live Meffert “ house. He wanted me to his and be Avife live Ave man together as and wife. told I him that was im married., ay possible, that I as We already simply agreed to live as together Q. husband and wife. What was the agreement? A. simply agreed together. We live Q. I want to agreement know what the A. was? I agreed him to live Avith his as wife. agreed He to be hus my (Struck band and I wife.” agreed be his a out as con clusion). He 11 Avillbe said, “ husband.’ He your asked tome with his come him and I wife, live told I him impossible be thought Avould I was al —that He married. said as Mr. ready long refused to TERM, Yol. OCTOBER wife, his me him as give divorce, a I would live Mr. xve prevent any way, could not it would I didn’t see any Avay. live as man Avife together could xcife, how I live Avhen Avas divorced. I He Avould be me take true me love I told him thing. care of life. the same me, my between would before God Ave us, We made voav other. He then put my finger, true each ring had given'me. took off the Mr. Stripe wedding ring promised and I I Avas Catholic,. was a Protestant, lie bring child born marriage, him, Avas heir. When that up Catholic. said he wanted an *7 from Ave promise made, together Avas commenced living was born September 3rd, baby time and on, that I Roman baptized 6th next it a Cath year. October except no other During time, place I lived olic. at ’ home. xvith Prospect Meffert’s He lived Avenue, hus at the time. He Avasjust of a me house came, and until his kind; people band could be, loving the housekeeper, Avas no friction. lie discharged had her a deal trouble. I come caused and that great the doctor so scandal —I begged Avas much back —there I would thought pro and did. to take he back, doc Prospect. was born at 1622 The us. baby tect He with slept it, kind to the child. until was Arery tor anybody he died. would not let He few weeks before The Avhole was turned himself. house' milk fix baby that child. Before the care of take topsy-turvy doctor opened an came, child, carrying and I was Parisian, might things at the I get me for account wife. me there as his introduced myself. charged had deal a great money doctor found out They charged there time had one things some else and and decided to close deal trouble great he his know buying I do not clothing account. him. He I ordered living was women while other it ordex*ed specially me maternity dress his baby He bought baby-buggy; York. Nexv from she wanted to. buggy, toxvards the paid something mother OF SUPREME COURT September From I until not 3rd, born, did baby entertain attention man than or receive other Ur. Meffert. He baby. told about his beautiful everybody I there when the doctor died. T was 36th at and Agnes, baby. Prospect, me At 1622 he had his housekeeper and his mother. I them account left friction- and. the scandal was terrible that so doctor and I planned to to California. go Myself, housekeeper, his mother lived and his brother’s wife there. He instructed the I pay my banks ‘Mrs. signed, checks. ’ F. J. Meffert. He introduced me at the German Ameri can Bank as wife. I known his restaur Nance’s his everywhere ant as wife. together. went At the We Royal Theatre he told the usher take wife down her. The weigh doctor showed a will me drawn after was born. baby He said Mr. Lawson ‘ it was fine and will.’ I said, a' dandy seen or word, it heard of since. I took Mr. for it, there Lawson’s no other will. house was broken into while My I was at the funex^al taken out. Ur. paper every Mef fert said that he had in his will provided for his xxxother and the and me were left boy. We oxxt didxx’t get He said fixed a piece of anything. property for xxxe Pr*ospect for axxd life, 15th death my I have two little go baby. girls to the hus my former *8 boy. The band —no the boy picture of the doctor.” court). “After (Struck out the the baby was born, a piece he tried to property price sell at any could so the the get country his wife oxxt oxxaccount baby from, axxdto the of scaxxdal as well as he protect baby could ‘ The was six threatening baby xxxobs.’ old, xnoxxths he died. persons told nuxneroxxs He the baby was ’ had I xxo sexual relations with boy. Stripe his after until born. 3rd, I Septeixxber baby was wexxt to in March had Stripe’s diphtheria. house whexx ehildrexx Prospect caxxxeto 1622 Avenue several tixxxesto give outixxgs. He would the babies meet them out (children) thexxxhoxxxe. Uoctor would axxd side take stand xxsually door. like it. Whexx little girl He didxx’t my TERM, Yol. OCTOBER * y. Stripe Meffert. took outme
sick, objected alone, lie there my to going was the only himself That treated the gii;l. little I not tell Stripe house.” She did time Stripe’s vent to it as to conceal about her voav Avith doctor. Tried knoAV. not Avant the world to as could. Did long she Asked Wanted him refused. give to her a divorce, marry to get legally could Stripe, divorce from so she be divorce, Dr. she had Meffert. lcneAV She to After' September 3, she him. could legally fore marry Dr. her Mrs. Meffert strangers Meffert called to knew when people was no scandal. But while there “ best I could. The her had to shield Stripe, she it as wife, doctor, (cid:127)scandal was about me living Avith the speak and Mr. would not to Stripe bad.” Stripe felt so her after commenced with doc living more not speak frame of would tor; such he Avas mind, him. After she commenced Avith the doctor, living to 27th Street, of the doctor’s houses on Stripe up fitted kept into his office near and moved it and there. Indiana, That Avas block had The from-where lived. two about.a her pail the time Avith girls stayed great little at Doc or his part tor of the time sister. Meffert’s, to Meffert “Marie payable her numerous checks gave — n Mrs. Stripe because knew people so me as many myself so I wanted shield scandal great Avas I could.” little baby girls much as When the Avere would when their call Stripe’s house, they her, daddy go I out to see them.” There “and gone, Meffert.” The to “Mrs. Avere lots of made out checks told bank signature, doctor “ take Liberty because signed way, M. Meffert.” She one that only much talk and scandal. none of so She thejn. supposed checks. She the defendants doctor’s “ Mrs. or “'Marie all made Stripe,” checks She public. frequently from Stripe,” shield her near property for the doctor all of collected rents “ ” 27th and Indiana. bached During where evidence, shoAvn De checks, period covered *9 1916, “people knew her March, usually to cember, 1914, ” e Mr. continued at his work for Mrs. Stripe,’ OF SUPREME,COURT # Stripe v. Mefflert. September the doctor as before, after 3, same owing and money the doctor for such work when was him In he died. her and the doctor 1916, the moved March, away Prospect, child his 36th and from to home, Agnes, great. scandal had become so because the The lawyer, they doctor said would be told him his Lawson, ceremony expected public a arrested. to after She Stripe. thought man she from we were was divorced “We public way, wife, and but the did look at it that and not public please society. we had to The doctor was get dispensation trying to could be we married a so priest.” against a She said filed divorce suit she getting contested it and she but if to said marry suppose get did could another she she man, May the divorce. This suit filed Be “ always alleging faithfully she had demeaned sides ” petition Stripe’s herself as divorce wife, her suit alleged indignities he had further .“that offered her such intolerable,” render condition also, to “ plaintiff pregnant again now with child of which she expects September. to be delivered about month of That pregnancy, such defendant since became aware has petition appeared ever.” more than been abusive The to be duly sign to and subscribed her. sworn She admitted says ing never read did it, it, not know what prepared by lawyer that it was it, information given him -doctor. When first went to doc housekeeper, Mrs. Dress! house, aer, tor’s the doc niece, Miss -were there. Baker, tor’s said, “Mrs. Dresslaer kept say weren’t married; we we were. said,
we She ing this. She was sour old I such woman. used anything like Miss that. Baker told if I doctor, going she would live there his wife, was told her leave. go, brought They gossip. and she both left., money, they they The doctor a lot of were afraid ought get I They it. would lose divorce marry happened doctor. This scandal then time. The all the great many patients,
doctor had say things. bring in news doctor told some *10 n Yol. OCTOBER TERM.
Stripe Meffert. had them of their Some of them it none business. impertinence there— the just tell he shouldn’t me to him Mr.
gossiping doctor At offered women. time the Stripe up, twenty-thousand give me if would dollars, lie really never meet refused. two men could he The agree, pieces. going without Mr. would not be to marry didn’t doctor.” Witness’s he cause want me the dqetor the tried, died, divorce case was never but after adultery got ground on from her a divorce the the her that told with Meffert. She said doctor “ I with he kneAV could live Missouri, under laAVs nobody “if I us.” his wife and could bother That him as got a our divorce, Avithhim as wife, lived his I never legitimate. I him and believed children would be trusted pro everything he me.” told told he made will her, He attorney, baby viding his Mr. for her and that after the it. Meffert died six months about Lawson, Agnes. child at 36th and born, Aims Avhile mother lived during day time, The her but doctor visited up Prospect kept Avenue. establishment at still his also testified for plaintiff, Avitnesses folloAVing as folloAArs: doctor, brother of
Charles Meffert, plaintiff’s mother that the introduced Avife,testified doctor “ them, cross-exami- But, their sister-in-law.” repeatedly the doctor told him testified that Charles nation, going Stripe, living, Avas and she Avas husband, that get be married. then divorce, just until time. keeping her there that Charles was day by plaintiff, and said he stand next recalled again, thought over that he made it all had mistake, “ my said Avas, what the doctor Avife, She publicly going are divorce, Ave to be mar- and after his Avifetestified that the doc- ried.” Both Charles and. his. He the child Avas resembled doctor. tor said Sylvia testified defendant C. Barrick was Charles also daughter doctor Avomanwho of the claimed to “ marriage something,” by a secret his Avife be only anything the doctor kneAV he about Ann mother. Meffert’s defendant was to COURT OP Murray, M. S. intro- testified: That Mrs. Fellows plaintiff’s duced recollected, mother to him, “ Mrs. Meffert.” Dr. room at Meffert was time.
Another witness said that Mrs. day near lived Agnes latter saw lived 36th and —one played the doctor like it child there, own son. was his
Margaret patient of doctor’s testi- O’Rourke, a plaintiff shortly fied that : after born, remem- boy, bered that doctor talked about as his the child “ all and said The child time, it him. looked like just exactly like him.” looks L. E. Hunter testified: That the doctor referred to plaintiff’s his mother occasion, wife on in were witness’s in a deli- restaurant, “ cate condition. kidded about He the doctor it.” Defendants’ evidence: Major president
John S. testified: That he was liberty, First National Bank where Dr. Meffert n kept pay account. He was any told to his never checks “ signed by Joseph “A. M. Meffert”'or F. Meffert A. party M. or Meffert,” Meffert’s Avas wife. After his checks, from the time death, doctor’s of his last balance were turned over to his administrator. The cashier bank also testified to the of the same effect. attorney
Martin E. testified: Lawson, That he was Liberty, Dr. Meffert at from 1893 until his death. Liberty once a doctor Avasover week. First knew him 1890, when his wife from him; obtained divorce up Avill, which drew his was read never evidence; Stripe. Sep him heard mention Mrs. In month of prepared another will for him. tember, At that my he time, came to and told office, me -he wanted got change original I will. out the will, him and told thought I changes; making it well read that over before changes
he down noted he wanted made pre up and left them with me to write Avill. I new pared prepared according it or had it to his directions. TERM, OCTOBER Val. suggested a again, it over, he read came When he recopied. He changes. him would it I I told
few over, then week. He in for a read did not come dispose right, but he on deal it was might property, want he did 15th Street changes. he had him, said to minor I to make a few delay quite might matters well not been “It sick, long.” will if don’t stand, old will I too He “The said, replied “all would,” “it make this one?” I said right,” will. never executed new out and and went “-1 day Sep dated the will, The new, unexecuted evidence, and showed tember introduced 1915,” was provision his mother. no mention of nor will dated, Meffert’s was the Dr. Witness executor duly prop^ probated and which which erty question to him trustee for de was devised daughter. Witness, fendant the doctor’s Meffert, Anna required by executor, witnesses, such with the as papers law, property charge took of Mef of the fert. received the canceled the First checks payable Liberty National Bank of to Mrs. none *12 signed by Meffert, J. F. and none Meffert to Mrs. Joseph F. Mrs. A. M. Meffert or Marie Mef Meffert or description. any fert or name one of the doctor’s only check the American Bank, There German was one Stripe. payable that was to Mrs. That balanced the and March 1915. Mrs. Dresslaer, account was dated against keeper, presented a the claim the house doctor’s years with which, estate for 18 the consent services, pre daughter, the allowed. Meffert Charles doctor’s he resisting sented claim on witness note, which was changed ground it to had been from the $29.50 $2950. changed for has been to one The other out of so take $500 At Limitations. the the Statute of time witness to allow Mrs. consented Dresslaer’s he no no claim, person any claiming estate, tice other an interest except daughter, Anna, the deceased’s she consented. wrote to Dr. F. Witness identified a letter he William like Emporia, saying Kansas, Meffert to have COURT OP what Charley find ont wife, a tails: they Meffert to or his Stripe might be .able knew case, about and he proper arrangement, to make as their was so far they about knew concerned, he knew what facts Stripe Meffert William At that time, case. Charley compromise trying Meffert witness to response con to in regard case, this letter was written compromis Liberty versation to ing the case.
George petition Day That he filed W. .testified: Stripe against husband, divorce for Mrs. got petition Stripe. stated in the the facts Mrs. peti- She to came or five times officefour before tion was information filed. no from Dr. nor Meffert, Got Stripe. except urged She Mrs. haste. She custody peace. wanted of the children in When the up appear, case came was ill times, several too and it was continued. After her child was born, some go one called witness to out to Dr. house to see Meffert’s drop her. He went, and case, which pregnancy, done. The information as to her time petition alleged, given filed, therein Stripe. him Mrs. Witness had examined abstracts attorney and attended to other matters Dr. Mef- years fert for six or seven his death. before When she May, consulted about her witness divorce witness given (27th her address as East Street 27th Indiana), according memorandum which petition made that time. After divorce was filed represented Stripe, Mr. Ellis told .the witness that he and that said that Mrs. the doctor adultery; guilty had been doctor had alienated (Stripe) her affections, and that he intended to sue doctor on account thereof. *13 Sparks public
T. O. notary testified: That petition Stripe and swore Mrs. her to divorce; she read it and over, said, that she understood and it right. was all signed Then swore to she it and the af- presence. fidavit in his TERM,' OCTOBER-
Vol. y. Stripe Meffert. testified: Harzf eld’s, credit man L. A. Grladdish, Stripe name, hut there in her no account That Mrs. application signed in her an she 4, 1914, on December -in the name account credit Marie B. name, going the doctor were Dr. she and said, of Meffert. She name get This ran in doctor’s account to married. The year, a letter. and then he revoked for about a signed by application put in both the evidence, witness signed Stripe Meffert. letter B. Marie and many housekeeper, for the doctor’s Dresslaer, Celia Sep- years first that about the death, said, before Stripe house, the Doctor’s came to Mrs. tember, Prospect Mrs. doctor said, to board. Avenue, Stripe bring to and there her children come wanted Stripe building got the until Mr. board for short time upstairs up Indiana; there 27th and rooms .fixed objected, occupy. because Witness wanted Stripe her. Mrs. hard for But the work would too be long day. won’t here and said, She “I came the next ’’ girls help one of her little will with work. She had help stayed, much. Witness but did her. She could and she it, told the she doctor, stand go Liberty. November, 1914, but, She went back request doctor, back at the came and collected Stripe couple months’ him. Mr. rent for left. meals several before witness took his times Stripe nearly every evening Mrs. went out and said she Stripe. going It to 27th Indiana see Mr. would be twelve o’clock sometimes eleven before she got until That back. was the situation left witness November. came back the rents for She collected January, said, when Doctor Mrs. December Stripe said, rents, she would collect witness did not collect more. returned in Witness March, 1915. gone, told The doctor Mrs. came day, gone back that same had been six said she. April, weeks. In the doctor’s invalid mother and brother stayed came. Mrs. back forth, but never night May stay. until returned to Witness *14 COURT OF Stripe Mrs. in. Mrs. what condition could see then miscarriage, Stripe threatened with a she was said, that n cheaper thought Stripe her for would be and Mr. stay, her, treat have the doctor there and come for go there came her. So than have to see she him Stripe times several afterwards treatment. Mr. came there. He took born meals before the child was evening before After the. born. child was there ’phone up Stripe her over the Mr. called born, child was Stripe that Mr. Mrs. and Stripe She told answered.' witness father mother and asked said, he —that was, doing him the mother well, and she told were said, ought was. But the father he whether know told just the father. When witness about he did not know Stripe a liar that, said, he was Mrs. she something” on Dr. Meffert. The child to “start wanted March 1915. The doctor died 6, born on was' October gone Stripe Agnes away to 36th had Mrs very death. The doctor the doctor’s month before Stripe child. and of this heard fond of children Never speak parentage. Stripe and the Mrs. doctor occupied room or the same the same bed doctor never They separate knowledge of the witness. to the Mr. October, 1914, occasion bed-rooms. On one Stripe Stripe him Mrs. met out front and over, came greeted a kiss. Then both came her Stripe Mr. ate ate dinner. dinner house six weeks spent baby Pie months before the came. or two whole day Stripe with Mrs. her afternoon that He room. working the doctor then. doctor dined with The priest. was christened Catholic us. The child Mrs, mother both Catholics. doctor and his baby Dr. Meffert Protestant. held the she was a said, They ceremony. during the entire his arms named the baptized. Frederick Meffert before he was child, discussion between Never Meffert and heard Stripe with reference to Mrs. the name the child. Be- Prospect left 1622 36th fore Mrs. and went to disagreeable Agnes, situation, final- there was such TERM, Yol. OCTOBER Stripe t. Meffert.
ly went doctor child there. The went over she and stayed sick. never He child, when it was over to see days night. ten home for about was sick the doctor had not found died. When witness before he wages, anything claima left felt her *15 ' put against which Miss claim, in a the She estate. doctor’s mother died Meffert consented. The Anna 15th December trial. before the Dr. lived at her Baker testified: She uncle,
Bessie years A before November, for two Meffert’s, couple Stripe left, there, before Mrs. she came weeks place up and to board her fixed at 27th until husband Stripe Stripe said. Indiana. That is what Mrs. Mrs. every evening supper say was would leave after she. Stripe. Stripe going Mr. to 27th Street to see Mrs slept nights she with the first two three witness the daughter, her little After that Con- was there. slept together north bed-room. The wit- stance, Education at Public ness for the Board worked being nothing Library. Stripe’s there do Mrs. leaving there. called there, her While she was including plaintiff’s Mrs. the doctor. mother, by any other Never heard her called name. Abbot She
Mrs. Kate testified: a nurse was Prospect. Stripe’s baby Dr. nursed Mrs. Meffert Stripe. introduced her to as Mrs. No witness Stripe anything paid her for her else. Mrs. her called when she left. The to think services doctor seemed baby. lot of the testified: her Anna Meffert She and
Defendant Liberty. millinery inwas mother lived at She busi- Liberty, Joseph father, ness which her P. Meffert, spring for her of 1905. was at her started She Mrs. father’s several there. house was times Stripe,” Mrs. “Mrs. Dresslaer called Her father her, collecting rent for him. That was was in (Mrs. Stripe’s) child before her summer was born. Wit- always good ness and father were on her terms. Liberty. often her called on store COURT OF y. Stripe Meffert. saying plaintiff’s
In denied rebuttal, mother liar, when not know Mr. said he did was a anything plaintiff’s father The about who was. other testimony substantially in rebuttal was as testified unimportant. before or testimony, gave
At the close of the court certain refused instructions for and defendants.' Among those for defendants, instructions refused a demurrer to evidence. jury answering then returned a verdict
specific questions heretofore out, set cause hearing continued several times for testi- further mony. January testimony, 31,1919, On lieu of further parties agreed stipulation to submit a in said cause, stipulation and said cause submitted taken under advisement. February judgment
On 5,1919, entered which adopted special the court jury, verdict of the *16 plaintiff legitimate found that was the child of Dr. Mef- being fert, mentioned in his will, said Meffert is ’ plaintiff. deemed to have died as to intestate, Tin Sylvia court further found, C. Barrick had trans her interest to ferred Lawson, defendants, executor, and respect plaintiff Anna Meffert with to which and defend- stipulation, approved by ants into a entered which is plaintiff provides, finally adjudged that if court, is property, an to inherit interest in said his interest shall proportionate charged with his share of $5,000,which Sylvia paid said C. said Barrick for defendants her in- provided, instrument terest said estate. Said further finally the same here cause be and and now that said Judgment for decree. to the court there- was, submitted declaring, plaintiff, for entered was entitled fore, in the interest real undivided one-half estate to an de- subject petition, stipulation, to said in the scribed subject to the remainder, to the will of the defendants Meffert. said days judg- rendition after the four
"Within court, same term of defendants filed and at ment Vol. 287] OCTOBER TERM, 1920. being
their motion for new which trial, overruled, appealed to this court. point by respondent I. The first made that the is, trial days motion new was not filed within four filing requires of the verdict. The statute motion days ,the
to he filed within four “after trial” Trial: [Sec. Usually 1909.] case. R. S. ^he trial, suit is at law, is ended with the Motion for New coming in verdict, because that deter Trial. necessary mines all of the issues to found the judgment upon. plaintiff But in this claimed the case, entire fee land. Defendant Lawson, as executor] also claimed the entire as trustee for fee, defendant only jury Anna Meffert. The issue submitted plaintiff son, whether riage was Dr. Meffert’s of a mar horn Stripe. judgment plaintiff No with Mrs. could upon finding he based alone. The title of will, as claimed under the doctor’s remained defendants, yet Notwithstanding plaintiff might he determined. legitimate will have his son—the been son—and even daughter might entire estate in or vested daughter might have had an inter others. Indeed, purchase from her co-defendant est also reason of decree, Sylvia in the because recited C. Barrick, daughter Sylvia the doctor’s that said evidence, something” with still another wo “secret or the defendants whether that, man. So be, what interest, land, interest in the special in this verdict after the determined, by the court determined was so rendered. case was It *17 jury, until hut of further intervention the without Hence, the trial judgment day rendered. was the the trial, for new motion the date, until continued days filed within being was thereafter, four within filed whether true, is by This required the statute. the time equity. inor was in law suit earnestly contends, respondent II. The we therefore, and, strictly at proceeding law, Mo.—25 COURT OF try novo, de review the evidence and cannot finding jury bnt are of bound Appeal: Trial only below, facts, can con- as to the court plaintiff of It true, sider errors law. de Novo. vigorously suit below, contended that the was jury trial and refused to that he entitled to a law, jury, legitimacy waive as the issue of his so far evidently, opinion, that concerned. was of But the court plaintiff’s chancery it was a legitimacy the issue of case, or that equitable it did issue; an because adopted judgment but it as enter verdict, judgment part findings of its then rendered facts, of equity as as The was treated thereon, merely advisory, in cases. verdict subsequent equity The mat cases.
as Sylvia with C. ters in as the settlement issue, well approval which and enforcement of involved rick, Bar equity powers court, of the exercise of dis respondent’s jury posed of without a with the court acquiescence such circumstances, consent. Under having may tried below as ruled been the case well be respondent’s chancery and, hence, consent, case, v. Toms, court. Harwood novo, this so tried de will be Mo. Beckemeir, 130 Mo. Roselle 225; right upon to recover bases whole III. JPlaintiff which is as follows: 342, 1909, Revised Statutes Section marriages law, decreed null in or dis- “The issue all legitimate.” shall be divorce, solved is the of a claims, that he issue mar riage statute; that the under law, “decreed” null error for the “decreed” is a clerical
word was in the law which “deemed,” word Illegal Legislature, passed by originally Marriage: Legitimacy of Children. ‘‘ ’ ’ print inadvertently changed to decreed ing and had been inad 1865, the Revision vertently revisions successive retained in are in counsel error. statutes Learned since that time. original of the Gen An enrolled bill examination of Chapter being 11 of eral Section Statutes of Secretary office of such enrolled bill, *18 387 TERM, 1920. Yol. OCTOBER. Stripe t. Meffert. that
State, shows, “decreed,” “deemed,” the word plainly written therein. The raised issue under said equitable cognizance, section is of has been authorita- tively, correctly we in think, settled State this by opinion Green, case 17, of Green 126 Mo. Macear- pp. case, said, In 24: 22, 23, court J. lane, policy legitimate “The of our is to make law chil- marriages honestly good dren contracted and in parties. faith one of the children such mar- riages good by one, into in or faith both of entered stigmatized parties, right not in be bas- should as. tards, and disinherited-on of one, account fraud or parents. misapprehension of of the the honest both To carry policy passed out this remedial statutes have been subject. modifying common-law rule on harsh subject Thus on the of divorce which our statute right marriage gives party to dissolve living husband or wife other expressly provides that contracted, no the time it legitimacy of affect the the- children such divorce shall provision 4500.] has retained on our [Section This been possibly 1845 revision books since statute longer. Again, descents and our law of dis- under statute early 1825 ‘the issue that, it was declared tribution marriages or dissolved di- null law deemed of all legitimate.’ [Revised Stat- be nevertheless shall vorce page 1825, 8.] sec. utes through continued force Act of
“The change. 1845 without In of 1835 and the revisions original in the word ‘deemed’ used 1865 the revision of changed So the section ‘decreed.’ reads: act was marriages null in law, dis decreed ‘The of all issue ’ legitimate. change This shall has divorce, solved through revisions of and 1889. been continued 4475.] sec. [R. S. ‘‘ under as it act, contends now Plaintiff now illegitimate incapable defendants are stands, though inheriting Green, William father, their good faith mother was entire their COURT OF Stripe v. Meffort. npon pnt ground that part. This contention *19 annulling decree mar- been formal never a there had contempla- Legislature riage. ever not think the doWe change change If in law. radical a ted so only appeared we not hesitate in revision would one through [Jones inadvertence. that it made to hold Hyatt App. v. 22 Mo. 200; 94 Mo. Driskill, Wolfe, “But, v. assuming 347.] Mo. that Babb, Turner 191; the word v. intentionally, it we think decreed’ was used plain- by given meaning attributed to not should be Assuming, that the word ‘decreed’ was do, tiff. as we Legislature intentionally in- did not used, we think meaning materially different from should be tend that original think in the act. We used the woI’d ‘deemed’ given practical 'inter- be a sensible act should upon pretation, a in if the trial of which the cause legitimacy the evidence involved, of children is shows justify equity court of a state of facts as would such declaring marriage null the children void, in legitimate marriage by of the would be virtue of such may contemplated Legislature that statute. The marriage effect was void, decree to the that should may found, that be entered when the fact is so be practice, in do not think it we essential better give statute.” effect to the order to interpretation of hold true the statute is as We by suggested J., the children above Maceaklane, parents legitimate must be issue be thereunder marriage, only but such was, whom there between marriage null in or law, decreed dissolved á as would be proceeding parties equity by in in a between divorce marriage marriage. action annul a In an to such parties equity, both or for reason, divorce, adultery, marriage knowingly there no lived would be injured an innocent or neither would be annul, to party, come into court with clean neither granted be either. relief would hands, and no Accordingly, harmony with the we hold, equitable principles, supra, and basic Green v. Green, marriage by one is entered into or both unless such TERM, OCTOBER Vol. parents innocently honestly, good faith,
of the by contemplated it is such a supported 342. This conclusion is also Section l. c court the case of Nelson Mo. Jones, “In stress where the court said:- the Green Case some good parties laid faith of at least contracting marriage. may well the second It be marriage at should all, in order to constitute a good marry, intention to faith, an element bona-fide prank against indulge over an intention to a mere mere casual sexual commerce.” have also all the eases de
We examined heretofore construing cided this court this statute cited counsel good part and in faith each case there on the *20 parents contracting marriage. one or both of [Lincecum 441; v. 3 Mo. Lincecum, Johnson, Johnson v. Harvey, Buchanan 135 Mo. Admr., 80; 30 Mo. v. 276; Bishop Dyer v. Mo. v. Brittian Inv. Brannock, 396; 66 699.] 229 Mo. Co.,
Especially can there
so-called
be- no
common-law
upon good
marriage, unless bottomed
faith —a bona-fide
marriage.
legal
[Per
to create
enter into
intention
(this court).]
v.
Greenhow contemplate absolutely does not an their statute void ' marriage parties. neither criminal as to both But said cited learned cases, states, cases from other nor coun respondent, apply statute, sel for to our since amend- OP . COURT
Stripe v. MefCert. by inserting “decreed” in ment the wdrd lieu original of the word “deemed” in act. persuaded, We are all the must more be marriage by parents a bona-fide at least one of the under 342 our statutes, Section reason provisions immediately pre of the of the Legitimation of Children. ceding (341, 1909) Section R. S. which having “If is as follows: a man, a woman a child intermarry or children, shall afterwards with her, and recognize they shall be such child children to his, thereby legitimated.” shall be This section covers the case of an bastard, adulterine child born o.r a of a mar ried woman man and a with whom husband, adultery. question has committed In such case, good parents faith in the relations of at the time regarded. Though the child was born conceived or yet, be .their sins afterwards contract scarlet — legal marriage recognize a dren their children, such chil legitimate [Busby stand shall all the world. before court).] (this 223 S. Self, W. These two sections supplement together, they must be read and construed complement (Sec. and 342) other. When so read, each marriage case,
covers the where there was a be parents, tween the be null it would decreed in law. marriage can no There without a bona-fide intention compliance marry law of the State where marriage legal contracted, because is a parties if the of 'the relation, intention it is to *21 contrary form relation to in a or defiance of the law, they can have no intention enter into a at marriage happens parties frequently good It all. iaith marry compliance with intend the law—to form a legal relation —but it out turns that some fact exists, knowledge at time, not within their which renders marriage and law, such null void in such as one or both spouse having they of them another er whom roneously supposed they were freed death or divorce, prohibited they degrees were related of within consanguinity, impediments they which or other were TEEM, 1920. 391 Yol. OCTOBEE Stripe .Meffert. marriage ignorant, void. which rendered their existed marriage a which would In all there would snch cases, would Section 342 to which said law, null in decreed marriage applicable, would and the issue of such be applies legitimate But thereunder. Section parties relationship between cases where illegal criminal, conceived, time was and as the child was requires parents, case, that section and such to both marriage subsequent legal parents to make the of the legitimate. intended to Both sections were not children ground. cover the same governs, when there that said hold, Section
We thing, marriage, or, what the same where no is alleged marriage absolutely prohibited by law and was parents, said both Section and void as criminal, marriage, governs, a bona-fide when there was parties concerned, but far of the was so as one least, yet null decreed law. would be governed by Section This said IV. alleged marriage because the Section marriage, (if all, which need such we there was I)r. on) pass Meffert and Mrs. between
absolutely criminal, null and void and parties parties both to both Adultery: Guilty —because Stripe wife W. H. knew Mrs. Knowledge. alleged time their at the doubly during place It its continuance. took part, guilty because both of on her criminal' bigamy. guilty adultery adultery He was and, bigamy, perhaps, because there was evidence also daughter Sylvia Barrick secret C. was his that marriage might her mother which have been valid Every divorced. from whom he was never one is presumed the law. to know The acts Meffert and though they criminal, still be even Mrs. ignorant But, law. case, of the had been find we fact, them, that both of as a matter of did know their relations wilful de law, against man, the law of both God and fiant crime For to be. to recover and believed it knew *22 OP MISSOURI, SUPREME COURT Stripe V. Meffert. under only said Section 341, he would have to not show, that Stripe, he was the child of Dr. Meffert and Mrs. but born, after their adulterous cohabita-' tion legal marriage consummated a terminated, recognized him as their child. This was never done. undisputed V. It follows, also, from the fact that both Dr. Meffert Mrs. knew she wife of Stripe, alleged marriage H.W. when their oc during curred and its entire existence, Knowledge strictly even if this were a case at law, judgment to be reversed, because in that event the demurrer to the evidence before jury, passed special questions which on the submitted to them, given. should hase been There was no evidence to sus finding jury, tain the of the that there was a be tween Dr. Meffert and meaning Mrs. within the of either of said Sections 342 or 341 of our statutes. plaintiff
VI. Whether the is, fact, the son of Stripe’s necessary Mrs. Meffert, or is husband, for us to decide. The non-access of the husband is re quired to be convincing shown such cases clear and presumption evidence; otherwise, the Presumption. par that the wife’s husband, and not her Nothing amour, is father child. we have impression, convey plain is intended to legally tiff is not entitled to the name bears. We do pass point. judgment lower of the court is, re therefore, versed, and cause remanded the court below, with directions to set aside decree heretofore rendered, judgment, right, and enter that the has no title property nor interest sued for, that the same vested defendant, Lawson, executor, trust for the defendant, Anna Meffert, under the terms Joseph the will of said F. Meffert, deceased. Brown and Ragland, concur. CC., foregoing opinion PER CURIAM: The Small, adopted opinion C., is as the of the All of court.
judges concur.