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Mullins v. Cemetery Assn.

made that the court excluded evidence offered by defendant to show that in two other cases cemeteries were made separate districts. Whether the facts connected therewith were similar to those in this case is not shown. It may have been found by experience that such discrimination in favor of the cemeteries was not just to the other land in the vicinity.

Notice of

II. Appellant contends that as there was no provision in the law for giving it notice of Assessment. the proceedings resulting in the issuing of the special tax bills in question, an enforcement of such tax bills will result in taking its property without due process of law. It is sufficient to say that such tax bills are legislative assessments, and no notice is necessary unless required by "some charter, ordinance, or statutory provision to the contrary." [Embree v. Road District, 257 Mo. 593.] That opinion was affirmed on writ of error to the Supreme Court of the United States. [240 U. S. 243.]

III. Appellant makes the following point: "The judgment of the trial court in enforcing Assessment the whole amount of the special tax bills On Cemetery as a Whole. as a single lien against the property now owned by defendant, including that part of the amount of said tax bills computed on the area of land already sold by defendant, amounts to a denial to the defendant of the equal protection of the laws, in violation of section 1 of the 14th Amendment to the Constitution of the United States."

We are furnished with no authorities or even argument on that proposition. On the last appeal it was held, in effect, that the ownership of all the land in the cemetery for the purpose of such taxation is in the appellant. Such being the case, the tax bills were properly issued against the cemetery as an entirety.

Robinson v. Robinson.

trial court

IV. Complaint is made that the erred in excluding evidence as to two other tax bills for sewer purposes issued against the property. We are bound to presume that all other property in the district paid in the same proportion. Without deciding whether such exclusion was error, we hold that it was not such error as calls for a reversal herein. The judgment is affirmed. Williams, C., concurs.

PER CURIAM.-The foregoing opinion of Roy, C., is adopted as the opinion of the court. All the judges concur.

BERTIE MARIE ROBINSON, now BERTIE MARIE BENNETT, v. BUDD M. ROBINSON, Appellant.

Division Two, May 31, 1916.*

1. MAINTENANCE OF MINOR CHILD: Divorce: Subsequent Modification of Decree. Custody in the statute pertaining to minor children of parents who are being divorced is conjoined with maintenance, and jurisdiction as to custody gives jurisdiction as to maintenance; and notwithstanding the decree dissolving the marital relation and granting the custody of a minor child to the wife is silent as to its maintenance, the court has authority, under Sec. 2381, R. S. 1909, declaring that "there may be a review of any order or judgment touching the care, custody and maintenance of the children," after the lapse of the term, to modify the judgment and grant to the wife a definite allowance for the future maintenance of the child. [Disapproving Lukowski v. Lukowski, 108 Mo. App. 1. c. 207, and Seely v. Seely, 116 Mo. App. 1. c. 362.]

2.

:

Change of Venue. A proceeding to have a decree granting to the wife a divorce and the custody of a minor child so modified as to include an allowance to her for the maintenance of the child, is not a suit within the meaning of the statute, and no change of venue can be granted.

*NOTE.-Certified to Reporter November 3, 1916.

Robinson v. Robinson.

3.- : Excessive Allowance. Where in an independent action the mother had recovered judgment of $1500 for the support of the minor child for the five years intervening between the date of the divorce decree awarding her the custody of the child and the date of the institution of the proceeding to modify that decree so as to allow her a definite annual sum for maintenance, and the evidence shows that what property defendant has is burdened with debt, an allowance of $500 a year will be reduced to $300.

Appeal from Jasper Circuit Court.-Hon. J. D. Perkins, Judge.

AFFIRMED (as modified).

Spencer, Grayston & Spencer for appellant.

(1) In the original case, the plaintiff did not ask nor did the decree award anything for the maintenance, support and education of the child, and therefore the court was without jurisdiction to make any order touching such matters in this case. Lukowski v. Lukowski, 108 Mo. App. 204; Seely v. Seely, 116 Mo. App. 362; R. S. 1909, secs. 2381 and 2375. (2) For the same reasons, the evidence did not warrant the court in making any order touching or concerning the support, maintenance and education of the child. (3) The court erred in overruling defendant's application for a change of venue.

Fred W. Kelsey for respondent.

(1) The rule in Missouri is well settled where the decree of divorce is silent on the subject of the children, the liability of the father to support his minor children remains in full common law vigor, though the mother is awarded their custody, as here." Viertel v. Viertel, 212 Mo. 576; Meyers v. Meyers, 91 Mo. App. 151; Cox v. Vogle, 152 Mo. 596; Lusk v. Lusk, 28 Mo. App. 91; Rankin v. Rankin, 83 Mo. App. 535; McCloskey v. McCloskey, 93 Mo. App.

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Robinson v. Robinson.

398; Maxwell v. Boyd, 123 Mo. App. 334; Keller v. City of St. Louis, 152 Mo. 596. (2) "The power of the court to make an order directing the father to provide for the maintenance of the minor children, under petition in the suit, long after final decree has been entered, is well established where the decree contains no provision on the subject." 14 Cyc. 811; 9 Am. & Eng. Ency. Law, 872; 7 Ency. Pl. & Pr. 131; Bishop on Marriage, Divorce & Separation, secs. 1212 and 1223; Hill v. Hill, 82 N. E. 690; Kraus v. Kraus, 98 Mo. App. 427; Shannon v. Shannon, 97 Mo. App. 119; Meyers v. Meyers, 91 Mo. App. 151; Chester v. Chester, 17 Mo. App. 657; Pretzinger v. Pretzinger, 45 Ohio St. 452; McAllen v. McAllen, 106 N. W. 100; Marks v. Marks, 118 N. W. 694; Keesling v. Keesling, 85 N. E. 837; Connett v. Connett, 116 N. W. 658; Tobin v. Tobin, 64 N. E. 624; Harris v. Harris, 5 Kan. 46; Holt v. Holt, 42 Ark. 623; Brow v. Brightman, 136 Mass. 187. (3) The weight of authority in Missouri supports the general rule that where no provision is made for the support of the child in the decree of the divorce, the mother may, at a subsequent term, obtain an order modifying the decree, requiring the father to provide future means for the support of the child. Shannon v. Shannon, 97 Mo. App. 119; Meyers v. Meyers, 91 Mo. App. 151; Chester v. Chester, 17 Mo. App. 657. Contra: Lukowski v. Lukowski, 108 Mo. App. 204; Seely v. Seely, 116 Mo. App. 362. (4) The statute authorizing the circuit court to make orders in divorce cases, is not to be strictly construed. In re Morgan, 117 Mo. 254; 9 Am. & Eng. Ency. Law, 866; 14 Cyc. 804. (5) The statute is capable of a construction which would authorize this proceeding and the construction contended for by the appellant would deny the court the right to discharge its duty to the children which are its ward. R. S. 1909, secs. 2381 and 2375. Harris v.

268 Mo.-45

Robinson v. Robinson.

Harris, 5 Kan. 53; Keesling v. Keesling, 135 N. E. 337; Tobin v. Tobin, 64 N. E. 624. ·

WALKER, J.-This is an appeal from a modified decree of divorce. At the June term, 1907, of the circuit court of Jasper County the respondent obtained a decree of divorce from the appellant.

The petition complied with the formal requisites in a pleading of this character and, among other things, alleged that there was a child born of the marriage, a boy, naming him, then nine years of age. Respondent then prayed in substance as follows; to be divorced from the bonds of matrimony contracted with defendant; that she have the care and custody of her infant child, and that the court adjudge to her, out of the property of defendant, such support and maintenance and for such time as the nature of the case and the circumstances of the parties require, and that, if necessary, defendant be compelled to give security for such maintenance, and that the court make such further orders and judgments from time to time, touching the premises, as shall seem meet and just.

The decree was rendered in conformity with this prayer, respondent being awarded $7000 alimony in gross and certain real estate. No order was made concerning the maintenance of the child. The appellant promptly satisfied the judgment thus rendered. Five years thereafter, at the June term, 1912, of the circuit court of Jasper County, the respondent, who had, in the meantime, married and removed to the State of Oregon, taking the child with her, filed a motion to modify the decree theretofore rendered in said cause. The motion asked that the court make an order allowing respondent a sum for the education and maintenance of the child. The appellant filed an application for a change of venue, which was overruled. The court proceeded to hear evidence on the

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