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App. 673, 159 S. W. 774. Frederick J. Pickel | ruling defendant's objection to questions askis, as we gather, the defendant and appellanted the attorney who was testifying for plainhere. The issues involved in these several tiff, it is said he was permitted under those cases appear so fully in the reports that it is questions to testify as to the law and the unnecessary to repeat them here. We refer necessity of prosecuting the appeal in one or to them as above reported.

more of the cases. [1] The value of these services is placed The trial was before the court. It is hardby plaintiff at $882.50, and the amount of ex- ly possible that any such expression of opinpense money is $85.80. As stated, on a trial ion by an attorney as to the law controlled of this latest matter before the court, the or even influenced the learned trial judge. court allowed all the expense money, but He would naturally take any such opinion only $400 on account of services in the case. for what it was worth, and in his own mind The items of the expense account are set and irrespective of it, determine the law. As out and were all testified to as correct and to the testimony given on the necessity of made in the course of this long litigation re- taking an appeal, opinion evidence on that ferred to. There was testimony to the ef- may possibly be a question of fact. At all fect that the services were worth $1,483, di- events, when the case is tried before the viding and itemizing the amount of what court, the appellate tribunals usually review would be a reasonable fee for the services in action on the admission of evidence only each of the cases. There was no contradic- when it appears that improper evidence contion of this valuation. Counsel for appellant trolled the decision. We do not see that made objection to allowance of fees in those such was the case here. cases on various grounds, among others that Finding no reversible error, the judgment they had already been allowed, were volun- of the circuit court is affirmed. tary or were not legal charges. Counsel for defendant cross-examined plaintiff's counsel,

NORTONI and ALLEN, JJ., concur. who was testifying to them at great length. The court, in the course of this examination, asked that counsel if it was possible for him WRIGHT v. WRIGHT. (No. 14064.) to properly separate the work that he did in (St. Louis Court of Appeals. Missouri. Nov. these several cases and counsel for plaintiff

2, 1915.) announced that he thought he could. The

1. DIVORCE 241 ALIMONY AWARD IN court thereupon suggested that the witness

GROSS-PERIODICAL ALLOWANCE. might read off separate for counsel for de- Under Rev. St. 1909, $ 2376, providing that fendant or prepare a separate memorandum on a decree of divorce rendered in favor of of each. Counsel for defendant objected to the wife the court may in its discretion de

cree alimony in gross or from year to year, trying the case that way.

whether an award of alimony should be in The assignments of error are on the allow- gross rather than a periodical allowance out of ance of these fees and also on overruling an the husband's income depends on the husband's

financial ability to respond to an adequate objection to a question propounded to the at-award in gross when compared with his earnings torney who testified as to the value of the out of which a periodical allowance may be services.

made. We have here a finding and judgment in a

[Ed. Note.-For other cases, Divorce, lump sum, that sum not quite one-half of the Cent. Dig. $$ 679, 680, 690; Dec. Dig. Em 241.] amount claimed. It is impossible to tell from 2. DIVORCE 241–ALIMONY-AWARD IN IN

Omw

STALLMENTS-DISCRETION. this what items the court allowed and what

Where, in a wife's suit for divorce, it apones he disallowed. The presumption al-peared that defendant possessed property to the ways is for right action by the trial court value of only $6,500 and that his income was and the party assigning error must show er- $340 per month, the action of the court in

awarding alimony in monthly installments of ror.

$100 as plaintiff desired, instead of in a gross Taking up the assignment that the plain- sum equal to or exceeding the value of defendtiff had split her account, we do not think it ant's property, as he desired, was not an abuse tenable. The services were rendered and had of the discretion vested in the court by Rev. St.

1909, § 2376. accrued, as we read the testimony, after the

[Ed. Note.-For other cases, see Divorce, Cent. allowance for other services; nor can we Dig. $8 679, 680, 690; Dec. Dig. Om 241.] say that the court allowed for these or for that matter any improper charges, the pre- Wilson A. Taylor, Judge.

Appeal from St. Louis Circuit Court; sumption being to the contrary if they were

Action by Frances G. Wright

G. Wright against improper charges. Admitting that some of

Guy H. Wright. From judgment for plain. the charges were proper and that others may not have been, we cannot tell how much was

tiff, defendant appeals. Affirmed. allowed on any item; what items were re

Manton Davis and Chester H. Kern, both jected, what allowed.

of St. Louis, for appellant. Morton JourIn this view of the case we are unable to dan, of St. Louis, for respondent. disturb the finding of the trial court, as all presumptions are in favor of its correctness. ALLEN, J. This is a suit for divorce.

[2] As to the assignment of error in over- | The decree before was in favor of plaintiff,

see

the wife, upon the ground of indignities, income, where the divorce, as in our modoffered by defendant rendering her condi- / ern practice, is an absolute one-a vinculotion intolerable. Defendant made default, restoring the parties to the state of unbut his counsel appeared at the trial on the married persons. That this is a sound and question of alimony. The trial court, after wholesome doctrine is beyond dispute; for, hearing the evidence adduced touching the where the circumstances permit it will matter, allowed plaintiff as alimony $100 doubtless be conducive to the welfare and per month, payable monthly, allowing also happiness of both parties, in a great majorattorneys' fees for plaintiff's counsel. There-ity of such cases, that the wronged wife after defendant filed a motion for new trial, be provided for out of the husband's estate the grounds thereof being that the allowance at the time of the divorce decree, thereby of alimony was excessive and that the al- becoming independent of her former spouse lowance should have been in gross instead and not compelled to look to him for susof in monthly installments. The motion be- tenance and perhaps to take future legal ing overruled, defendant appealed.

steps to secure a periodical stipend awardPlaintiff and defendant were married in ed her.

As is well said by Commissioner 1900, and during all of their married life Brown, in Lemp v. Lemp, 249 Mo. 311, 155 resided in the city of St. Louis. Approxi- | S. W. 1061, Ann. Cas. 1914D, 307: mately four years before the trial below

"It is just and humane, and lies at the very there was a separation, which continued for the innocent and injured woman be delivered

foundation of the policy of absolute divorce, that some months, followed by a reconciliation. from the body of her dead injury, and not be The parties then lived together until June required for life to live in its atmosphere and 5, 1912. It is unnecessary to rehearse the taste its flavor with her daily bread." evidence relative to the indignities

And, on the other hand, it may be assumed stituting ground for the decree in plain that such course, where practicable, will ortiff's favor. The record discloses that de dinarily be the better one so far as the husfendant's conduct toward plaintiff was char- band is concerned, disposing of the matter of acterized by extreme indifference and neg- alimony once for all, rather than leaving it lect; that he ceased to care for her and in the form of a periodical obligation purfrankly so told her, remained away until suing him through life. Touching this queslate at night, and finally refused to eat any tion generally, see what is said in: Green v. meals at home; while it appears that plain-Green, 152 Ky. 486, 153 S. W. 775; Williams tiff was a devoted and faithful wife, who v. Williams, 36 Wis. 362; McGechie v. Mcmade every effort to retain her husband's Gechie, 43 Neb. 523, 61 N. W. 692; DeRoche affections. It was agreed in open court that v. DeRoche, 12 N. D. 17, 94 N. W. 767, 1 Ann. defendant received a salary of $340 per

Cas. 221; 2 Nelson on D. & S. $ 903; Lemp v. month, and that he was possessed of prop

Lemp, supra. erty of the value of $6,500.

But the doctrine invoked necessarily has The proposition urged by defendant on his its limitations, and its applicability or nonappeal is that the court should have award- applicability must be determined by the facts ed alimony in gross instead of alimony of the particular case, having regard to the from month to month, One of the assign

husband's financial ability to respond to an ments of error is that the award as made adequate award in gross, when compared to is excessive, but this is not urged upon us.

his earnings out of which a periodical allowThe contention is that under the circum

under the circum- ance may properly be made. stances alimony in gross should have been which must be separately considered to insure

"From this standpoint there are two elements awarded, and that we, having plenary pow- complete justice. The obligation to support, er to review the action of the trial court maintain, and protect the wife often exists in the premises, should reverse the judg- marriage contract the husband pledges himself

where no property interest is involved. By the ment and remand the cause with directions to do this, and, if he has no property, his future to enter a judgment for plaintiff for such earning capacity must be utilized for that puralimony in gross as may appear to be prop-defeat the very object to be attained. For this

In such cases a judgment in gross might er. And though at the time of the trial be- reason it is often necessary that alimony should low appellant was possessed of an estate be paid from time to time to conserve the abil. of but $6,500, his counsel now suggest to ity of the husband to meet the obligation.” this court that the alimony accrued under Lemp v. Lemp, supra, 249 Mo. loc. cit. 311, 155

v. . ,

1061, . . the judgment, which it is said has been

[2] Section 2376, Rev. Stat. 1909, provides regularly paid by respondent in monthly

that: installments, be considered alimony pen

“Upon a decree of divorce in favor of the wife, dente lite, and that the decree below be the court may, in its discretion, decree alimony modified, giving the wife $7,500 in gross as in gross or from year to year. permanent alimony.

The form of the decree is a matter there[1] The argument of appellant's learned fore resting in the sound judicial discretion counsel is that, where practicable, alimony of the court, and whether alimony in gross in gross should be awarded the wife, rath- or a periodical stipend should be awarded er than an allowance of a monthly, quar- must be determined by the circumstances of sessed of sufficient means therefor, and an gestion as liberal as that made by appellant award in gross can be made to the wife in this court, viz., to turn over to respondent, which is commensurate with the provision as it is said, all that appellant possesses; which might properly be made for her both parties going their way and beginning through an allowance of alimony from year life anew as it were. It is true that, as a to year, payable on certain named dates, dis- suggestion or offer coming from a husband cretion would be wisely exercised in favor of under such circumstances, it is out of the an award of this character. Such was the ordinary. But the wife has been awarded case of Lemp v. Lemp, supra, cited and re- $100 per month as alimony, an amount by no lied upon by both parties here, where the means disproportionate to defendant's earnwife was awarded $6,000 per year by the ings. It is impossible for any court out of trial court, payable in quarterly installments the property possessed by appellant to make

$1,500 each, and she appealed. The Su- adequate provision for her, when all the cirpreme Court held that, under the circum- cumstances are considered, and hence it folstances of the case, the husband being a man lows that appellant's offer, though liberal for of large wealth, the wife should have been one of its nature, yet fails to meet the deawarded alimony in gross, and accordingly mands of the situation. directed an allowance to her of $100,000.

It is true that the allowance made plaintiff But the case is not persuasive in support of is under the control of the court below, and appellant's argument in the case before us. subject to future alteration should the cirAppellant's income is $340 per month, or $4,- cumstances warrant, and there is necessarily 080 per annum; out of this he is adjudged to an element of uncertainty as to its duration. pay the plaintiff $100 per month, or $1,200 But under the circumstances proper proviper annum. On the other hand, the property sion for plaintiff by way of a present income which he possesses, even if all thereof were can be made only by an allowance of this utilized therefor, would be insufficient to sort. And despite the objectionable feature earn an income for plaintiff in any degree of alimony of this character, the cast-off commensurate with defendant's ability to wife, insisting that her right to be maintainprovide for her. Assuming that the sum of ed, which the law vouchsafes to her within $7,500 were awarded as alimony in gross, in the limits of the husband's ability, be not accordance with appellant's suggestion in this denied her, is here with able counsel bitterly court, this at 6 per cent. per annum would contesting appellant's efforts to obtain a modyield $450 per year, or, "if allowance be made ification of the decree. for taxes and a possible lower rate of in

We think that the judgment ought not to terest, for safe investment” (Viertel v. Vier- be disturbed, and it is accordingly affirmed. tel, 212 Mo. loc. cit. 577, 111 S. W. 582), the income to be derived therefrom must be plac

REYNOLDS, P. J., and NORTONI, J., coned at a considerably lower figure. While it cur, is true that plaintiff would then have the corpus of this little estate, the income available therefrom would be altogether dispro

RIEPE V. VETTE. (No. 14122.) portionate to the earnings of defendant, and (St. Louis Court of Appeals. Missouri. Nov. his ability to provide for plaintiff in accord

2, 1915.) ance with the obligation assumed by him by 1. Usury 34-USURIOUS TRANSACTIONSvirtue of the marriage contract. In other STATUTORY PROVISIONS. words, the case is one where the earning abil

Under Rev. St. 1909, § 4571, making void ity of the defendant and his actual earnings given to secure a loan when the lender exacts

any note and mortgage on household furniture are such as to make it possible, and altogeth- or receives directly or indirectly as interest any er practicable, for a court to decree alimony sum in excess of 1 per cent. a month on the from month to month in a sufficient amount to with 8 per cent. interest, secured by a chattel

amount actually loaned, 15 notes for $35 each give plaintiff a reasonable income, in keeping mortgage on household furniture, given for a with the station in life of the parties, while, loan of $350, are usurious, and the notes and on the other hand, the estate possessed by i mortgage may be canceled at the suit of the

maker. defendant is insufficient for such purpose.

[Ed. Note.-For other cases, see Usury, Cent. In this situation the trial court, in the exer- Dig. SS 83-89; Dec. Dig. 34.] cise of the discretion reposed in it by law, 2. PRINCIPAL AND AGENT Cm 23-AGENCY adjudged it meet and proper to award plain- EVIDENCE. tiff monthly alimony rather than in gross.

Evidence held to justify a finding that a No fault may be found with the amount of usurious notes secured by a mortgage on housesuch award, considering the husband's in- hold furniture, authorizing the cancellation of come. And, under the circumstances, we take the notes and mortgage at the suit of the maker. it that no appellate court can say that this

[Ed. Note.-For other cases, see Principal discretion was not wisely and justly exer- and Agent, Cent. Dig. § 41; Dec. Dig. 23.) cised.

3. EVIDENCE 129—SIMILAR FACTS-AGEN

CY. Learned counsel for appellant say that we

Where, in an action to cancel because of should not turn a deaf ear to an offer or sug- / usury notes and a mortgage on furniture to se. cure them, given by plaintiff to defendant, the executed her notes and mortgage, payable to issue was whether a third person negotiating Vette, for $525, she received but $350 thereon. the loan was defendant's agent, the testimony of a witness that shortly after the loan she ap

[1] The evidence is that the Lunts were plied to defendant for a loan on her household formerly in the employ of Vette, and there is furniture, and he sent the third person to in evidence, too, that H. C. Lunt—the husband spect her furniture as security and acted for of Mrs. Lunt and brother of Miss Lunt—was defendant in the matter, was competent to prove the relation existing between defendant acting for Vette shortly after this loan was and the third person, though the testimony of made, in that he inspected the security ofthe witness that she had negotiated a usurious fered and negotiated a loan between him and loan from defendant was incompetent. [Ed. Note. For other cases, see_Evidence, section 4571, R. S. 1909, to cancel the notes

one Mrs. Beeler. The suit proceeds under Cent. Dig. SS 451-457; Dec. Dig. Om 129.]

,

and the lien of the mortgage on the houseAppeal from St. Louis Circuit Court; Leo hold furniture therein described because the S. Rassieur, Judge.

transaction was a usurious one and impinged "Not to be officially published.”

the provisions of the statute referred to. Action by Jennie Riepe against J. H. Vette. Section 4571, supra, denounces as void any From a judgment for plaintiff, defendant ap- note or notes and chattel mortgage on housepeals. Affirmed.

hold furniture, as here, given to secure a loan Wm. Sacks, of St. Louis, for appellant. of money not exceeding $500 when the lenBartley & Douglass, of St. Louis, for respond- der exacts or receives directly or indirectly ent.

as interest on the money loaned any sum in

excess of 1 per cent. a month on the amount NORTONI, J. This is a suit in equity to actually loaned. The several notes executed cancel certain notes and a mortgage because here—15 in number—stipulated on their face of usurious interest taken. The finding and the rate of interest of 8 per cent. from date decree were for plaintiff, and defendant pros and fell due one each month for a period of ecutes the appeal.

15 months. The 15 notes, of $35 each, total It appears that plaintiff desired to borrow the sum of $525 on which plaintiff received $350 on her household furniture and inter- $350. The balance, $175, was withheld from viewed one H. C. Lunt concerning it. Lunt her though she executed notes for $525. It instructed her to return to his office in the is obvious that this transaction amounted to Fullerton Building on the following morning, the taking of more than 1 per cent. a month, which she did. On appearing at Lunt's of- and if the evidence sustains the finding of the fice the following day, July 29th, the lady court that the loan was made by defendant in charge, Mrs. Lunt, told plaintiff that the Vette to plaintiff through his agents, the loan would be made and thereupon drew up Lunts, the notes and mortgage were propthe notes and mortgage. Plaintiff executed erly canceled as the court decreed. 15 promissory notes, of $35 each, for the sum [2] But it is argued the Lunts were the total of $525, which stipulated interest from agents of plaintiff, and defendant Vette meredate at the rate of 8 per cent. until paid. To ly furnished the money or purchased the secure these notes she executed a chattel notes and mortgage from them, and the $175 mortgage on her household furniture and ac- was, no doubt, retained by the Lunts as their knowledged the same before Ritta B. Lunt, commission on the loan. The court found the notary public. The several notes and mort-Lunts were the agents of defendant Vette gage were executed in favor of defendant and acted for him in the transaction. It is John H, Vette. Thereupon Miss Lunt-a sis on this theory the cancellation was decreed. ter of H. C. Lunt-accompanied plaintiff to It is true there is no direct and positive erithe office of defendant John H. Vette where dence that the Lunts were the agents of the money was procured. On entering Vet-Vette at the time, but the record abounds te's office he drew his personal check for with facts and circumstances from which the $525, payable to plaintiff, and delivered the court may find the Lunts acted for Vette check to her. Plaintiff was instructed to in- rather than for plaintiff. It appears plaintiff dorse the check that it might be immediately applied to H. C. Lunt for a loan of $350, and cashed, but declined to do so for the reason, she was directed to return the following as she says, that she had no money in the morning when the final answer would be givbank and thought she ought not sign a check en. On returning to Lunt's office she was diunder such circumstances. But Miss Lunt rected by Mrs. Lunt, who appeared to know instructed her that it was proper to indorse the purpose of her visit, to execute the paher name on the back of the check so as to pers which were promptly drawn up for her receive the money on the loan, and hence signature and acknowledged. This she did, she so indorsed it. On plaintiff's indorsing and the notes and mortgage in the amount the check, defendant Vette handed Miss Lunt of $525 were taken. Immediately she was a package from his safe containing $525, accompanied to defendant Vette's office by cash. Miss Lunt counted out $350 in bills Miss Lunt, and the evidence is that Vette and passed it over to plaintiff but retained seemed to be fully advised concerning it. the balance. So it is that though plaintiff The notes and mortgage were drawn in the first instance, payable to John H. Vette as of $250 on her household furniture, and he though he were the principal making the loan sent Lunt to inspect her furniture as seto plaintiff. He accepted the securities incurity, and he acted for Vette in the matthe amount of $525 and passed over to Miss ter. In consummating this loan of $250 for Lunt a package containing that amount of which notes for $450 were given, she made money. She, it is said, in his presence, count- no application to Lunt and, indeed, knew him ed out $350 to plaintiff and retained $175. only as the representative of Vette sent out Before the money was delivered, however, by by him to inspect her furniture and make Vette to Miss Lunt, he drew a check for the the loan. This evidence was competent as amount of $525, payable to plaintiff, and re-tending to prove the relation existing bequired her to indorse it. Although this check tween Vette and Lunt. was cashed instanter by Vette in the pres- The judgment should be affirmed. It is so ence of all the parties, it appears in evidence ordered. with the word "paid” perforated in it as though it had passed through the bank. REYNOLDS, P. J., and ALLEN, J., conMoreover, the name of H. C. Lunt, who was not present at the time, appears to be indorsed across the back of it, and this, together with the perforation of the word

STATE v. WILD. (No. 13680.) "paid” in the check, suggests that unusual (St. Louis Court of Appeals. Missouri. Nov. precautions were taken for some reason in

2, 1915.) event it should be necessary to produce the Courts Cm 231—MISSOURI COURT OF APPEALS

-JURISDICTION-CONSTITUTIONAL QUESTION. check on some future occasion as was done

A contention in the briefs that Rev. St. here.

1909, SS 8315, 8320, were unconstitutional beThe evidence is—indeed, Vette admits— cause defining three separate and distinct penthat the Lunts were formerly in his employ, al question, so that the Court of Appeals was

alties for the same offense raised a constitutionthough it is said not at this time. More- without jurisdiction to determine the same, and over, there is evidence on the part of Mrs. the case would be transferred to the Supreme Beeler that, when she negotiated a loan di-Court for final determination. rectly with Vette shortly after the loan in Dig. ss 487, 491, 644, 646-648, 650, 652–659,

[Ed. Note. For other cases, see Courts, Cent. the instant case was made, H. C. Lunt came 661; Dec. Dig. Om 231.] to her house as Vette's representative and inspected the furniture.

Appeal from St. Louis Court of Criminal It was competent for the court to find from Correction. these facts and circumstances that the Lunts

"Not to be officially published.” were acting for Vette in the matter and to

Franz Wild was convicted of practicing charge him with their conduct on the theory medicine without a license, and he appeals. of an agency for him. It is certain that di-Cause transferred to the Supreme Court for rect evidence of a fact at issue is not es

final determination. sential. No one can doubt that such a fact- W. A. Carter and Chas. J. Maurer, both of i. e., as that of the agency involved here - St. Louis, for appellant. Howard Sidener may be found by the court from other facts and S. S. Bass, both of St. Louis, for the State. and circumstances in evidence which afford a reasonable inference tending to prove it. NORTONI, J. Defendant prosecutes this When it is remembered Vette was an entire appeal from a judgment of conviction on a stranger to plaintiff and that the notes and charge of practicing medicine without a limortgage she executed at the instance of cense. It appears he was informed against the Lunts were payable to John H. Vette, and tried under the provisions of the statute there appears to be an abundance in the (section 8315, R. S. 1909). He moved to case which tends to show they were acting quash the information on the grounds, among for him and not for plaintiff. We are not others, that the statute defines three distinct disposed to disturb the finding of the court offenses and different penalties for the same on this matter.

offense when committed by different persons; [3] Although it may be the evidence of also that it impinges section 28, art. 4, of the Mrs. Beeler was incompetent in so far as it Constitution of Missouri. The court overtended to prove that she had negotiated a ruled the motion to quash, and defendant loan with defendant for the amount of $250 duly saved an exception to such ruling. Aftand executed notes for $450 to him therefor, er trial and conviction and within due time, it was entirely competent on the issue of defendant filed a motion for a new trial and agency; for it appears the transaction was one in arrest of judgment. The fourth negotiated by Lunt as the agent of Vette, ground set forth in the motion in arrest is and this, too, at a time shortly after the loan as follows: in the instant case wase made and when

"The statutes relating to the practice of mediVette said Lunt was no longer his repre- information was issued, are unconstitutional

cine, surgery, and midwifery, under which the sentative in such matters. Mrs. Beeler says and void because they define three separate and that she applied to Vette directly for a loan | distinct penalties for the same act and offense,

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