45 Mo. 602 | Mo. | 1870
delivered the opinion of the court.
In September; 1867, the plaintiff instituted in the St. Louis Circuit Court a suit against the defendant; her then husband, for divorce,-and in due time obtained a decree dissolving;the marriage relation, and giving, her the custody of her five children. She soon after intermarried with Isaac’M. Ruth; and .in November, 1868, the defendant presents a petition for- a review of so much of the divorce-as gives, to the plaintiff the custody-of the children, and asks to have them restored to him. He alleges various reasons for his request, some of which affect the character of the mother, and all- of which go to her ability and fitness to rear them; • and at the hearing she and her said last husband, who- is •made a- party to the petition for review, appear- and admit of record that they are unable to take charge of: and educate said children, and disclaim all-right to their-care and custody; But notwithstanding this disclaimer, the defendant insisted upon introducing evidence against'- the 'character and fitness 'of the plaintiff, which the court very properly refused to-admit,' and held that the defendant was prima facie-entitled' to the-custody and
The mother was satisfied with this order, but the father refused to accept the custody of the boys upon its conditions, and filed a motion forja new hearing, which the court refused to hear, but sent it, with all the papers and minutes of testimony, to another judge of the same court, who overruled the same. This change was resisted and excepted to by the petitioner for review. The court, at general term, affirmed the decree, and the case is brought before us.
The appellant raises objection to the action of the court as matter of law. He testifies that he and the mother are Roman Catholics, and desires that the children be raised in that faith,
The other legal objection to the action of the court was its refusal to entertain the motion for a new trial, and sending it to another judge for hearing. I do not find any substantial difference between the duties of the several judges of the St. Louis Circuit Court, at special term, and those of the Circuit Courts of the State. (See Tilford v. Ramsey, 43 Mo. 410.) The court, at general term, may distribute business among the several judges (Gen. Stat. 1865, p. 889, § 15); but when one enters upon a trial, he is independent of the control of the other judges, except
. Uor tbis error, it becomes-, necessary to. reverse • tbe judgment of general term and remand the cause, not necessarily for a -new trial, but with directions-.to the judge.who tried the case-to bear and. decide tbe motion for . a new bearing,