Thompson, J.,
delivered the opinion of the court.
This is an action for divorce and alimony, brought by Mary B. Dwyer against her husband, William Dwyer. The matters of difference which exist between this unfortunate couple now; come before this court for the third time. In the first case Mrs. Dwyer brought an action against her husband for a divorce, shortly after quitting his mansion and separating from him, on the ground, as she alleged, of indignities offered by him to her, such as rendered her condition intolerable. It was held by this court, affirming the judgment of the circuit court, that her evidence failed to exhibit such a state of facts as entitled her to a divorce under the statute. Dwyer v. Dwyer, 2 Mo. App. 17. The spouses thereafter continued to live apart for about ten years, holding no communication with each other — the wife supporting herself by her own exertions, and the husband contributing nothing to her support — until, in 1883, the husband brought an action for divorce against the wife on the ground of abandonment. In this action the wife filed a cross-petition, in which she claimed a divorce from the husband, on the ground that he had deserted her, and neglected and refused to provide for her support. In that suit such proceedings were had that this court, reversing the judgment of the circuit court, held that neither party was entitled to a divorce from the other. Dwyer v. Dwyer, 16 Mo. App. 422.
The present petition sets up the same matters which were adjudicated against Mrs. Dwyer by this court in the two former actions, and sets up the additional ground that the defendant “has been guilty of such conduct, both then and since [meaning both at the time of their living together in 1873 and since], and up to and inclusive of the date of the filing of this petition, as to constitute him a vagrant within the meaning of the law respecting vagrants.”
I. At the trial the plaintiff gave evidence tending [649]*649to show the treatment by her husband toward herself while she lived with him in 1873, and the reasons which impelled her to quit his place of abode; and she admitted that she had testified to substantially the same facts in the former actions. The defendant put in evidence, against the objection of the plaintiff, the record -of the court in the former actions, under that part of his answer which pleaded a former adjudication. There was no error in this, and it is not necessary to enlarge upon so plain a proposition. The circuit court could not, and neither can we, re-judge the judgments of this court in those cases. Those judgments, whether well or ill-founded, are, upon elementary principles, conclusive upon that court, upon this court, and upon every other court.
The only remaining question is, -whether the plaintiff has shown the defendant to have been guilty of such conduct as to constitute him a vagrant within the meaning of the statute respecting vagrants. If she has shown this, she is entitled to a divorce, and, incidentally, to alimony, under the provisions of section 2174, and other sections of chapter 28, of the Revised Statutes.
II. At the outset there is a question whether the charge of vagrancy was pleaded with sufficient definiteness to amount to a statement of a cause of action upon that ground. Undoubtedly, the petition is not sufficiently specific. It was held by the supreme court, in Bowers v. Bowers (19 Mo. 351), that a petition which merely charged, in general terms, that the defendant had offered to the plaintiff indignities which rendered her condition intolerable was not sufficiently specific under the statute. But it was not held that such a petition would not support a judgment, where there had been a trial without any objection to its insufficiency. Undoubtedly, the defendant in the present case would have been entitled to a rule on the plaintiff to make her petition in this respect more definite and certain ; but a majority of the court are of opinion that, after a trial [650]*650and judgment, without any objection to the sufficiency of the petition upon this ground, and in the absence of anything in the record indicating that the defendant has been thereby prejudiced, we ought not to affirm the judgment, irrespective of the merits as shown by the evidence, merely because of the indefiniteness of the statement in the petition. While we agree with the doctrine that waiver does not apply in divorce proceedings, since the state is, in a sense, a party to every such cause, and the law prohibits decrees by consent or collusion, yet the history of this litigation and what appears on the face of the present record clearly show that a rule which would require explicit definiteness of statement on the part of the plaintiff, whether the-defendant should object or not, would have no application to such a case as this. On this point Judge Rombauer deems it unnecessary to express an opinion.
Judge Lewis is, however, of opinion that the plaintiff ought not to be precluded from having the merits of this charge considered. by] this court because of' the indefiniteness of the petition in setting it out, for the further reason, that, at the commencement of the trial, the plaintiff asked leave to amend her petition, and substitute after the word “petition,” in line eleven thereof, the words, ‘ ‘ and since the filing of this petition, by his failure and refusal to support the plaintiff;” which leave to amend the court refused. In order to-understand the effect of this amendment, it should be-stated that the petition, if so amended, would have run. as follows : “ And has been guilty of such conduct, both then and since, and up to and inclusive of the day of the-filing of this petition, and since the filing of this petition, by his failure and refusal to support the plaintiff, as to constitute him a vagrant within the meaning of the-law respecting vagrants.” Judge Rombauer and I do not concur in this view of Judge Lewis. We are of the-opinion that this amendment was properly rejected, for the reason, if for no other, that it contained an element [651]*651which could not be injected into the case, namely, the conduct oí the defendant since the filing of the petition. The general rule is, that the plaintiff can only recover upon the state of facts existing at the time of the commencement of his action, and that if he had not a cause of action at the time when his action was brought, he can not amend by charging matters subsequently arising, but if he wishes to avail himself of such matters, he must dismiss and bring a new action.
Upon the question, whether the evidence adduced on behalf of the plaintiff shows that the defendant was a vagrant within the meaning of the law relating to-vagrancy, the members of the court are likewise unable to agree. Judge Lewis and I are of opinion that the statute (Rev. Stat., sect. 2174), in using the words, “within the meaning of the law respecting vagrants,” has reference to any and all of the provisions of the Revised Statutes respecting vagrants, not only to the provisions of chapter 166, but, also, to the provisions of section 1568, which is found in the criminal code ; but Judge Rombauer is of opinion that the statute refers to the provisions of chapter 166, merely.
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Thompson, J.,
delivered the opinion of the court.
This is an action for divorce and alimony, brought by Mary B. Dwyer against her husband, William Dwyer. The matters of difference which exist between this unfortunate couple now; come before this court for the third time. In the first case Mrs. Dwyer brought an action against her husband for a divorce, shortly after quitting his mansion and separating from him, on the ground, as she alleged, of indignities offered by him to her, such as rendered her condition intolerable. It was held by this court, affirming the judgment of the circuit court, that her evidence failed to exhibit such a state of facts as entitled her to a divorce under the statute. Dwyer v. Dwyer, 2 Mo. App. 17. The spouses thereafter continued to live apart for about ten years, holding no communication with each other — the wife supporting herself by her own exertions, and the husband contributing nothing to her support — until, in 1883, the husband brought an action for divorce against the wife on the ground of abandonment. In this action the wife filed a cross-petition, in which she claimed a divorce from the husband, on the ground that he had deserted her, and neglected and refused to provide for her support. In that suit such proceedings were had that this court, reversing the judgment of the circuit court, held that neither party was entitled to a divorce from the other. Dwyer v. Dwyer, 16 Mo. App. 422.
The present petition sets up the same matters which were adjudicated against Mrs. Dwyer by this court in the two former actions, and sets up the additional ground that the defendant “has been guilty of such conduct, both then and since [meaning both at the time of their living together in 1873 and since], and up to and inclusive of the date of the filing of this petition, as to constitute him a vagrant within the meaning of the law respecting vagrants.”
I. At the trial the plaintiff gave evidence tending [649]*649to show the treatment by her husband toward herself while she lived with him in 1873, and the reasons which impelled her to quit his place of abode; and she admitted that she had testified to substantially the same facts in the former actions. The defendant put in evidence, against the objection of the plaintiff, the record -of the court in the former actions, under that part of his answer which pleaded a former adjudication. There was no error in this, and it is not necessary to enlarge upon so plain a proposition. The circuit court could not, and neither can we, re-judge the judgments of this court in those cases. Those judgments, whether well or ill-founded, are, upon elementary principles, conclusive upon that court, upon this court, and upon every other court.
The only remaining question is, -whether the plaintiff has shown the defendant to have been guilty of such conduct as to constitute him a vagrant within the meaning of the statute respecting vagrants. If she has shown this, she is entitled to a divorce, and, incidentally, to alimony, under the provisions of section 2174, and other sections of chapter 28, of the Revised Statutes.
II. At the outset there is a question whether the charge of vagrancy was pleaded with sufficient definiteness to amount to a statement of a cause of action upon that ground. Undoubtedly, the petition is not sufficiently specific. It was held by the supreme court, in Bowers v. Bowers (19 Mo. 351), that a petition which merely charged, in general terms, that the defendant had offered to the plaintiff indignities which rendered her condition intolerable was not sufficiently specific under the statute. But it was not held that such a petition would not support a judgment, where there had been a trial without any objection to its insufficiency. Undoubtedly, the defendant in the present case would have been entitled to a rule on the plaintiff to make her petition in this respect more definite and certain ; but a majority of the court are of opinion that, after a trial [650]*650and judgment, without any objection to the sufficiency of the petition upon this ground, and in the absence of anything in the record indicating that the defendant has been thereby prejudiced, we ought not to affirm the judgment, irrespective of the merits as shown by the evidence, merely because of the indefiniteness of the statement in the petition. While we agree with the doctrine that waiver does not apply in divorce proceedings, since the state is, in a sense, a party to every such cause, and the law prohibits decrees by consent or collusion, yet the history of this litigation and what appears on the face of the present record clearly show that a rule which would require explicit definiteness of statement on the part of the plaintiff, whether the-defendant should object or not, would have no application to such a case as this. On this point Judge Rombauer deems it unnecessary to express an opinion.
Judge Lewis is, however, of opinion that the plaintiff ought not to be precluded from having the merits of this charge considered. by] this court because of' the indefiniteness of the petition in setting it out, for the further reason, that, at the commencement of the trial, the plaintiff asked leave to amend her petition, and substitute after the word “petition,” in line eleven thereof, the words, ‘ ‘ and since the filing of this petition, by his failure and refusal to support the plaintiff;” which leave to amend the court refused. In order to-understand the effect of this amendment, it should be-stated that the petition, if so amended, would have run. as follows : “ And has been guilty of such conduct, both then and since, and up to and inclusive of the day of the-filing of this petition, and since the filing of this petition, by his failure and refusal to support the plaintiff, as to constitute him a vagrant within the meaning of the-law respecting vagrants.” Judge Rombauer and I do not concur in this view of Judge Lewis. We are of the-opinion that this amendment was properly rejected, for the reason, if for no other, that it contained an element [651]*651which could not be injected into the case, namely, the conduct oí the defendant since the filing of the petition. The general rule is, that the plaintiff can only recover upon the state of facts existing at the time of the commencement of his action, and that if he had not a cause of action at the time when his action was brought, he can not amend by charging matters subsequently arising, but if he wishes to avail himself of such matters, he must dismiss and bring a new action.
Upon the question, whether the evidence adduced on behalf of the plaintiff shows that the defendant was a vagrant within the meaning of the law relating to-vagrancy, the members of the court are likewise unable to agree. Judge Lewis and I are of opinion that the statute (Rev. Stat., sect. 2174), in using the words, “within the meaning of the law respecting vagrants,” has reference to any and all of the provisions of the Revised Statutes respecting vagrants, not only to the provisions of chapter 166, but, also, to the provisions of section 1568, which is found in the criminal code ; but Judge Rombauer is of opinion that the statute refers to the provisions of chapter 166, merely. Judge Lewis is further of opinion that the evidence in this case brings the defendant within the clause of section 1568, which describes a vagrant as “every able-bodied man who shall neglect or refuse to provide for the support of his-family” ; but Judge Rombauer and I do not share in this opinion, and as we two differ with each other in opinion upon this question, I will merely say for myself that, while I am of opinion that, in order to entitle the-wife to divorce, on the ground that her husband is a vagrant within the meaning of section 1568, Revised Statutes, the evidence must be such as would support a conviction for vagrancy in a criminal prosecution under that section, I do not think that the evidence in this case would support such a conviction. It does not appear, by any competent evidence, that Mr. Dwyer has ever neglected, or refused, to provide for the support of [652]*652bis family. I am of opinion that the wife does not cease to be a member of ber husband’s family from the mere circumstance that she may reside apart from him. I have no doubt that the mere circumstance of ber so residing, does not entitle him to refuse to support ber. But I am of opinion that the statute has no application to the case of a husband who neglects, or refuses, to support bis wife who wilfully and wrongfully lives apart from him, and who wilfully and wrongfully refuses to return to him and perform the duties of wife. If this was Mrs. Dwyer’s position, I should say that the statute could have no application to this case, although she may have been the sole member of her husband’s family.
I am also of opinion, and on this point I understand Judge Rombauer to concur with me, that the criminal statute is leveled against vagabond husbands, who, having the ability to do so, neglect and refuse to support their families generally, and that it does not apply to a case of a husband who merely neglects, or refuses, to support a single member of his family. There is no competent evidence, in this record, that Mr. Dwyer has not other dependent members of his family for whose support he is providing. The mere statement of the plaintiff, testifying as a witness, that another person had told her that he had driven all his children away from home, although not objected to, is not evidence which we can consider at all, as triers of the facts. The law ascribes to such evidence no probative force ; and it would be a misuse of. our functions to determine á controversy of this importance upon such evidence, though not objected to.
It results from this statement of the views of the members of the court that, while no two of the judges have been able to agree upon all points, a majority of the court agree in affirming the judgment. In doing so, we think it right to say, as we said in the case between these parties in 16 Missouri Appeals, that it is a case where two spouses appear to have quarreled and sep[653]*653arated on grounds which, are not, in law, justifiable in either. The mere fact that they hate each other, and are not willing to live together, does not entitle either of them to maintain an action for a divorce against the other. At the same time, we say now, as we said then : “It is clear of all doubt, on this record, that the defendant was induced to leave the home of the plaintiff on account of ill treatment by him, and that, from that day to this, he has done nothing in the way of reparation, which indicates, on his part, a willingness to have her return. On the contrary, it sufficiently appears that he is unwilling to have her return and resume the duties of wife. She is, therefore, to be taken and deemed as remaining away from his home by his consent and desire, and this consent and this desire are, of themselves, a reasonable cause for her continuing to remain away.” It is not doubted by any member of the court that, while a wife remains away from her husband’s domicile, with his consent, under such circumstances, he is bound, in law, to support her, and she has power to charge him for necessaries. Moreover, his continued refusal to support her may result in giving her a right to a divorce and alimony. If she should bring another action for divorce, upon the ground of vagrancy, and, on another trial, should plead and prove that she is the only member of his family ; that, since, the bringing of the present action, she has demanded of him the performance of the duty of providing for her support, and that he has refused to perform this duty, she will be entitled to a divorce and alimony, in the opinion of Judge Lewis and myself, under sections 156S and 2174, Revised Statutes.
With the concurrence of Judge Rombauer, the judgment is affirmed ; Judge Lewis dissents.