*1 279 1919. Vol. OCTOBER Vordick Vordick. v. dismiss, plead to motion than the further
fused to to be dismiss- whereupon cause the court ordered said record Whereupon, cause dismissed the said ed. court.” said “plead to the motion than further refusal This a'protest nothing than more dismiss” amounted against being at a which to trial term forced option. only been suc- at his had triable H:e cause was perfect appeal appellant forcing its cessful recognizance, affidavit and amendment appeal thereupon had if been well the case stood given. It dismiss taken and no notice was error proceed prove failure of the cause for duty no to do at term. which was under case he appearing upon This the face of record error judgment circuit must be reversed, court proceedings; or- cause remanded further it so Ragland (7(7., Small, dered. concur. opinion foregoing PER CURIAM':—The Brown, opinion adopted All of the court.
C., judg,es concur. Appellant, H. VORDICK, H.
ALINDA AUGUST H. HAU VORDICK, Deceased; WILLIAM Executor VOR SHULTE, AUGUST H. Will DICK. One, March
Division 1920. Usurpation. government JURISDICTION: a constitutional Under organic powers prescribed' by a not' its the acts of court within usurpations, . when law are done court of last resort gravo become menace. per 2. -: Divorce: Other se is one of the Issues. Divorce named which to the cases Constitution lies Court, Supreme judgment it has if to review on its it divorce merits must b'e issue because involves some brings specific within enumeration of wherein cases appellate jurisdiction. given it is SUPREME OF COURT1 MISSOURI. Dispute: Alimony: '-: Amount How Ascertained. 3.-: granted alimony in Where the trial the wife a divorce and only possible ground upon the sum of and the which the *2 jurisdiction Supreme appeal Court has her the is that amount dispute jurisdiction $7,500, exceeds that it on that the fact has ground appear affirmatively must the made the trial record court; petition allege any and if definite does amount alimony attorney’s fees, recover, she is entitled to either as examined, the entire record should be to determine what is dispute. amount Inadequate 4. -: -: -: -: Award: Social Sta- petition tion. Where the in her the divorce case did allege alimony not attorney’s the amount she was entitled to recover as prayer adjudged fees and its was that she ali- be such mony par- the nature of the case and the circumstances of the right proper, ties and her for a and motion trial she new complained. the amount of her inade- awarded quate and less than she was entitled to under law and adjudged evidence and further that she should been an yield amount sufficient to her an income that would according defendant, to the station in life of herself and dispute appeal amount on difference between the $5,000 adjudged (a) adequate to her either and amount to evidence, (b) which she is entitled under the law and the an yield amount that would an income sufficient according life; affirmatively appears to her station unless it from the entire record she was entitled to recover reasons, for one or the other of these amount in excess Supreme jurisdiction Court no of her —there being ground no other is invested in said except possible ground dispute the one the amount in appellate jurisdiction exceeds But she could have fixed Supreme Court, by in the claiming in her an amount in $7,500 excess by over and above the amount he-r awarded court, allegations apparent unless the made it that such claim only. fictitious colorable 5. DIVORCE: Dower After Decree for Wife. The wife’s inchoate by dower grant- in her husband’s real estate is unaffected a decree ing awarding her alone divorce in a named sum money, adjudged which is not to be in lieu of dower. by Entirety: Upon 6. Estate Cotenants Divorce Decree. Resi- property, bought by conveyed bounty dence the husband entirety, by to him and his wife as tenants virtue of a decree equally divorce in her favor becomes the two tenants in common. ' Yol. OCTOBER v. Yordick.
Yordick Appeal County G.. Louis Circuit Court.—Hon. from St. Judge. Wurdemcm,
A. Appeals. Transferred to St. Louis Court appellant. Homer Hall for respondent.
Muench, & Muench for Walther April begun 3, action was C . This RAGLAND, County, by 1914, Alinda in the Court for St. Louis Circuit against August B. alimony. H. for divorce Yordick Yordick Septem- Plaintiff defendant were married separated 11, ber the time 7, March 1916. At marriage plaintiff fifty years of their was a about widow, *3 Troy, age, had ¡York, and resided at New where she the,defendant living; daughter widower, a married was a age, having sixty-five years about married also a City They daughter, first and resided in the of St. Louis. through spring met a on cruise the Orient respective correspond- On their return to their homes a resulting marriage. Soon after ence their ensued, marriage purchased an attrac- defendant a their home University City, tive St. Louis residence district County, paying eleven It contained therefor story rooms and a There was a two half structure. they began housekeeping. They kept hut no servants, assistance from defendant did all ironing, cooking, washing, including housework, they Except trips recreation con- etc. for lived there tinuously separation. spent They until weeks their four Michigan July, about two months Cali- they in the summer of 1915. When home fornia were at anywhere except she never ings meet- went to church auxiliary its certain of societies. life Their brief together tempestuous beginning. from the Prom was indulged in first per, violent tem- outbursts of applied epithets during plain- he offensive which MISSOURI. OF SUPREME COURT (cid:127) after Immediately her. infrequently struck tiff and not invariably atmosphere these the domestic explosions ap- was forgiveness, the defendant asked cleared, felicity unalloyed periods parently freely granted, passion exhibitions violent followed. Defendant’s noj aby jealousy, produced doubt were occasioned by his recur- they as time went on imagination, disordered was frequency. red with At first more her- violence, later she defended his passive recipient of and in the last encounter will, with a right good self car- of it. -she cannot be that she worst While got said ‘‘ ’’ spectacles were week his eye more, a black for a ried he up” his “whole left side scratched broken, night where “suffered all two bed he up laid ” battle As a result this three days. pitched af- as fierce hotel, but, was, left and went to appreciably defendant, apparently, fection for a. un- two she stole thereby, lessened day afterward home his pinned pil- their find to- obtrusively note into On brief “I love message, you.” low, containing followed, An went in interview pursuit. this he finding settle insinuated that he should at which she gently he offering. This peace her some of and the breach abide, could not became final. conten-
The evidence most favorable to plaintiff’s at the defend- tion the time of tends show securities, property: *4 of tract of land west a acre two miles $30,000; forty-six of value County, Louis the estimated Clayton St. of Beliefontaine north fifty-acre tract the Road $38,800; on $121,500; of the estimated value Louis, the of of St. City of City industrial and two lots in an district outlying at $30,000' a value estimated from of Louis, St. of the unimproved All this estate was and of real concededly specula- were on it witnesses values put rent- tracts larger or more the were Parts one of tive. of five and annual rental of from yielded ed to gardners from hundred to six The rents hundred dollars. received Yol. OCTOBER
Vórdick property the remainder were nominal. In addition to the just defend- was the residence which the mentioned, there appellant purchased in her ant for and which $12,500, admits, conveyed tacitly and he caused brief be thereby jointly, creating them an estate himself entirety. inferentially that The discloses evidence also marriage was, at the time of her to defendant possessed of trial be, and at the time continued approxi- even means, which, however, the extent of mately, suggested. physician, The is not defendant was a occasionally only practice, but had treating from active retired patient. source His income an old meagre. been must have petition ground sets out for divorce
The indignities hereinbefore particularity character alleges is seized It that the indicated. also money personal property possessed and and and of real is with- $250',000 of the value prosecution adequate for the out means of prayer “that divorce and this suit. The for alimony, adjudge such court .will of the defendant maintenance out of the circumstances under the nature of the case and right proper.” parties ad- answer The allegations marriage, mitted the denied the other indignities. up and set counter plaintiff and she The court the issues for found party granted injured innocent alimony adjudged for It as and divorce. also gross the condition $9,000, she recover the sum n twenty days, relinquish hei thereafter she that within and that estate, inchoate dower in real defendant’s failing, recover de- $5',000. so do 'the sum She "she relinquish dower so that clined to inchoate gross judgment for the sum of Plaintiff a motion filed new' on tht attorney’s grounds, among that the others, inadequate “wholly less and much than the fee are evidence,” under the law and is entitled ought judgment for an sub and that to be *5 284 SUPREME OF MISSOURI. COURT y. Vordick.
Vordick which, pro- give plaintiff would net income ficient in accordanct maintenance vide for her plaintiff The and defendant. with the life station judg- appeal an from the motion was overruled, alimony attorney’s awarding fees was and,, ment granted Pending appeal the defend- to this court. in the name been revived ant has died the cause has of his executor. principal, assignment
The of error is that “the awarding inadequate an erred alimony gross insufficient amount as and for attor- ney’s fees.” dispose appeal
It
be
would
easier to
of this
on
question
jurisdiction,
merits than
has
on
but,
repeat
often been said
it does
it
not hurt to
occa
sionally,
government
under a
the 'acts
constitutional
powers prescribed by
of a court not within the
the or
ganic
usurpations,'
are
law
a court
when done
grave
of last resort
become a
menace. To determine
jurisdiction
proceeding
our
before
at all
is, therefore,
duty.
imperative
times an
per
Divorce
one of
is not
tht
se
cases
in the
named
Constitution
lies
to this court.
If
have
we
determine this
appeal on the merits,
is
that,
it
because
therefore,
notwithstanding it-is
divorce,
attribute
brings
specific
that
it within the enumeration of the
appellate jurisdiction.
cases wherein we have
From a
only possible
view
entire
record,
one
dispute,
the amount in
exclusive
exceeds seven
costs,
thousand five
juris
hundred dollars. And if
we
because,
ground
diction
must be
that fact
affirmatively appears from the
record made
Railway
[Kitchell
court.
v.
Mo. 455-457;
Co., 146
ex
Rey
State
rel. v. Gill,
the circumstances in order to be looked however, should The entire record, dispute; in is the to the determine amount respect. 199 [Vanderberg Co., v. Gas conclusive that complains plaintiff 455.] for a new In motion Mo. the her is inade awarded the amount of that quate the law entitled to under than she is and less further that she should have evidence, and the yield income her an sufficient been amount allowed an according life the station that would plaintiff As the trial court awarded of defendant. dispute alimony, plaintiff is the the amount in $5,000 the and, between amount either any, if difference, adequate which is under amount to entitled amjount evidence, the or the an would law according yield her an income sufficient to jurisdiction, question of in life. On station it is us to determine whether it for therefore, affirma appears including' tively record, the entire adequate allowance to which evidence, that, either the plaintiff is or evidence, entitled under law yield mentioned, her the sufficient income is in of $12,500. excess gen-
An examination of evidence discloses in way that at of eral the trial was the time defendant sixty-seven years passed age, produc- that he had period property life and tive his that while his was by plaintiff’s sympathy estimated, those conten- tion its at from value, as to more $110,000 $120',000/ unimproved than three-fourths of non- consisted income-producing real estate for which there no speculative except prop- one. The market residence erty marriage paid soon defendant after the being bounty by through held entirety, by tenants virtue of equal- decree of divol'ce became the the two .of ly as tenants common. Plaintiff’s inchoate dower in ,the wholly the by remainder real estate was unaffected age, decree, reason of his and, it could, at 286 SUPREME OF MISSOURI. COURT reasonably anticipated been the time of have trial, many years lapse would become before tak- as it in consummate, fact since consisting remaining property, en. theOf $30',000 nearly half. Neither $12,500 securities, notes and any de- this, nor to that of the accumulation of property, fendant’s did contribute slightest degree, money or in either sacrifice labor, thought. fur- Such contribution cannot, therefore, moiety any giving nish a other defi- basis part nite his estate it did Gercke,: Gercke However, she entitled to sufficient Mío. 237. recompense protection alimony to her for *7 support by lost to the mari- her defendant’s of breach obligation ending tal in the decree of divorce. From appear in evidence it does not that the facts value protection money support necessarily in of such Appellant suggests just exceeds that recom- $12,500. pense therefor would an amount to sufficient furnish according her an income that would her1 her station in it be life. Let conceded. She did not by lose home of the reason and. the divorce, evi- directly necessary dence does not or show inference that the income from1 the $12,500- would not pro- her in home, another in obtained with ceeds according- of sale in of interest it, the. style living adopted by plaintiff manner of during marriage. gross their Defendant’s supported him;self out of income which he and wife approximately year. awarding of instead If, $2400' plaintiff alimony' gross, required in the court had de- pay annually during fendant one-half, her life present of his income, or $1200',the valué thereof-, ac- cording mortality adopted the Carlisle of tables statute this State in for certain purposes, would be less any than $12,500', Upon reasonable of1 vie^fr the- evi- dence affirmatively it not appear whole, does necessarily entitled to, or that she in claimed gross below, the court excess $12,500. plaintiff’s The evidence does not show extent of TEEM, '281] OCTOBEE Yol. inadequacy adequacy or that reason and for
means, attorney’s fees her for the allowance $500' judg- entire in connection considered not been part. component ais ment for $5500, difficul striking of the presents a instance This case determining record from ty encountered in often very jurisdictional. dispute Prom when amount in evi controversy an examination nature of the dispute involves the amount -in. dence to determine the con merits, extent a consideration some holding necessity include the clusions reached proof appellant is not entitled facts on the difficulty would gross This in excess of claim to definite made had been obviated petition, record, elsewhere if in excess of claimed, amount so below. The by the court, amount awarded above the over and $7,500, would have appellate this un court, fixed apparent fictitious col that such claim less it was probably merely, case it would orable Cherry, [Cherry regarded. 150 Mo. have been so supra; App. Tobacco 539; Gill, 414, 167 S. State v. W. supra.] Co. v. Rombauer, appear affirmatively As does not entire in, dispute, ex- exclusive of costs, record that the amount ap- jurisdiction ceeds this court is without *8 peal. It is that the cause be transferred to the ordered Appeals. St. Louis Court
Brown and concur. GO., Small, opinion foregoing PEE C’UBIAM:—The Eag- adopted opinion, court. All land, C., judges concur. ant owned the Notes following annual amount of interest, cent to the per six bearing