Johnson v. Johnson

Missouri Court of Appeals

Johnson v. Johnson

68 S.W. 971, 95 Mo. App. 329, 1902 Mo. App. LEXIS 50

CourtMissouri Court of Appeals

DecidedJune 9, 1902

StatusPublished

Cited by12 cases

This text of 68 S.W. 971 (Johnson v. Johnson) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Johnson v. Johnson, 68 S.W. 971, 95 Mo. App. 329, 1902 Mo. App. LEXIS 50 (Mo. Ct. App. 1902).

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Opinion

ELLISON, J.

This is an action for divorce in which the plaintiff prevailed in the trial court and defendant, having failed in his motions for new trial and arrest of judgment, has appealed.

The point made by defendant’s counsel on the motion in arrest relates to a radical defect in the allegations of the petition as to the residence of the plaintiff in this State. The allegation,'is that, “Plaintiff has been a resident of Jackson county, Missouri, for more than one whole year continuously before the filing of the original petition in this and before this date also. ” The statute is that the plaintiff must have resided within the State one whole year next before [331]*331filing of the petition. There is no statement that the offense or injury was committed in this State or while the plaintiff resided in this State. By inference it may he gathered that some of the many small acts charged were committed in this State, hut this is not sufficiently explicit and was evidently not relied on by the pleader as avoiding the necessity of an allegation of residence which he undertook to make. The allegation does not meet the requirement of the statute. The plaintiff may have resided in this State one whole year continuously before filing her petition and yet that year have been a long time in the past. The statute requires the year’s residence to be the year next1 before filing the petition. Collins v. Collins, 53 Mo. App. 470; Carter v. Carter, 88 Mo. App. 302; Hansford v. Hansford, 34 Mo. App. 262.

' It is suggested that the word “before” used in the petition means “preceding” and that by force of the statute (section 4156, Revised Statutes 1899) “preceding” means “next preceding.” That statute has no reference to the word as used in pleading. It merely concerns the word when used in the statute as reference to another section of the statute.

The judgment is reversed and the cause remanded.

All concur.

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ELLISON, J.

This is an action for divorce in which the plaintiff prevailed in the trial court and defendant, having failed in his motions for new trial and arrest of judgment, has appealed.

The point made by defendant’s counsel on the motion in arrest relates to a radical defect in the allegations of the petition as to the residence of the plaintiff in this State. The allegation,'is that, “Plaintiff has been a resident of Jackson county, Missouri, for more than one whole year continuously before the filing of the original petition in this and before this date also. ” The statute is that the plaintiff must have resided within the State one whole year next before [331]*331filing of the petition. There is no statement that the offense or injury was committed in this State or while the plaintiff resided in this State. By inference it may he gathered that some of the many small acts charged were committed in this State, hut this is not sufficiently explicit and was evidently not relied on by the pleader as avoiding the necessity of an allegation of residence which he undertook to make. The allegation does not meet the requirement of the statute. The plaintiff may have resided in this State one whole year continuously before filing her petition and yet that year have been a long time in the past. The statute requires the year’s residence to be the year next1 before filing the petition. Collins v. Collins, 53 Mo. App. 470; Carter v. Carter, 88 Mo. App. 302; Hansford v. Hansford, 34 Mo. App. 262.

' It is suggested that the word “before” used in the petition means “preceding” and that by force of the statute (section 4156, Revised Statutes 1899) “preceding” means “next preceding.” That statute has no reference to the word as used in pleading. It merely concerns the word when used in the statute as reference to another section of the statute.

The judgment is reversed and the cause remanded.

All concur.

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Bluebook (online)

68 S.W. 971, 95 Mo. App. 329, 1902 Mo. App. LEXIS 50, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-johnson-moctapp-1902.

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