72 Iowa 502 | Iowa | 1887
The petition was filed on the 5th day of January, 1886. The answer was filed on the 10th day of
In Peel v. Peel, 50 Iowa, 521, a motion was made to strike the defendant’s answer from the files for a failure to comply with an order for the payment of temporary alimony. The defendant offered to show cause why he had so failed. The offer was refused, and the answer was stricken from the files, and the cause was tried upon the petition and evidence introduced by the plaintiff. It was held that the ruling of the court was erroneous. It is said, in that case, that “ it will not do to hold that the marriage relation maybe dissolved on the ground of defendant’s inability to pay a sum awarded as alimony, or because of his recusancy.” And in Baily v. Bcdly, 69 Iowa, 77, it was held that the refusal of a defendant in a divorce proceeding to pay a judgment for temporary alimony is not a contempt of court, and does not deprive him of the right to defend. That case is decisive of the case at bar. The distinction sought to be made by appellee’s counsel between that case and the case at bar does not seem to us to be well taken. In the cited case, an order was made to pay the temporary alimony by a certain day, “ and, in default of such payment, then judgment therefor.” In the case at bar, there was an order to pay the money to the clerk by a day named in the order. An execution could have been awarded upon this order, the same as upon a personal judgment. Section 3026 of the Code requires that it be enforced by execution.
The decree of the court below is reversed, and the cause remanded for trial upon the issues raised by the pleadings.
REVERSED.