Miles v. Miles

119 S.W. 456, 137 Mo. App. 38, 1909 Mo. App. LEXIS 174

Opinion

ELLISON, J.

— Plaintiff instituted an action for divorce and defendant filed a cross-bill. The trial court refused a divorce to either and dismissed the bill. Plaim tiff thereupon appealed to this court.

As insisted by plaintiff, it is quite true that in a divorce case if a party shows himself to be entitled to a divorce under the law it is the duty of the trial court to grant it. [Wares v. Wares, 122 Mo. App. 129; Wald v. Wald, 119 Mo. App. 341, 348.]

But it is also true that while one may show the acts and- conduct of the other are sufficient to establish a cause for divorce if such acts had been committed against an innocent party, they will not establish a cause unless the party charging them is an innocent party. In this case the evidence discloses conduct on the part of each party which disentitles such party to a divorce. We will not set forth the evidence. Much of it is too vile and filthy for print. It is sufficient to say that we can well see why the trial court concluded to dismiss the petition and cross-bill. In affirming the judgment we find ourselves in much the same state of mind as was the St. Louis Court of Appeals in Wells v. Wells, 108 Mo. App. 88.

Counsel for plaintiff dwell much on some remarks made by the trial court preliminary to pronouncing judgment and seem to draw inferences from these that they are inconsistent with the judgment rendered. It is not a conclusive way to impeach a decree of divorce to show what may have been remarked by the court. Nor is it just to that court. The concern we have is to know whether .the judgment was right, and we think it was. It is therefore affirmed.

All concur.