Brown v. Brown

146 P. 231 | Wyo. | 1915

Beard, Justice.

This case seems to be an attempt on the part of defendant in error, who was plaintiff below, to combine a special proceeding for separate maintenance and an action at law to recover on an alleged contract for the payment of money. The petition which was filed in the District Court by the defendant in error against the plaintiff in error alleges, in substance, that the parties are husband and wife, having been married in 1903, and having lived together as such until about January 22, 1912, since which time they have been living separate, and that no action for divorce is pending between them. That for a long time prior to the date of their separation they had occupied certain described premises situated in Sheridan as a homestead. That for a long time prior to January 22, X912, defendant falsely accused plaintiff, his wife, of the crime of adultery and also made such accusations to a number of her friends. That, when he was absent from his home, he addressed to her a number of postal cards and cartoons, insulting in their nature and character, and accusing her thereby with unfaithfulness to her marriage vows, and that he also placed her under surveillance. That said manner of persecution became unbearable, and that she left the home and has since lived separate and apart from her husband. That since she left the home he has failed to contribute to her support except the sum of $20.00; that she has been compelled to earn her own livelihood. That said homestead was of the value of $5,000, and that defendant owned other property, viz: household furniture, $900; saloon, stock and fixtures, $5,000, and some mqney. It is then alleged that about February 7, 1912, the defendant desired to sell said homestead and agreed that if she would sign the deed therefor he would pay her one-half of the selling price, and would also pay her one-half of the selling price of other property, when sold by him; and that the homestead was sold for $5,000. That defendant had failed to pay her $2,500, the one-half of the price of the homestead, and one-half of the money obtained from the sale of household goods. That one hundred dollars per month was a reasonable amount for her maintenance. She prayed for judgment for $2,500, the one-half price of the homestead, and for one-half of the selling price of the furniture, etc.; for $100 per month for her maintenance and support, and for attorney’s fees and suit money.

The petition was filed August 28, 1912, and notice served on defendant the same day, that the plaintiff would on September 3, 1912, apply to the District Court, or, if the court was not in session, to the judge thereof, or in his absence to the Court Commissioner for an order requiring the defendant to pay to plaintiff the several sums prayed for. The matter came on for hearing before the Court Commissioner, and the defendant filed his answer wherein he objected to the jurisdiction of the Court Commissioner to try or determine any questions relative to the alleged agreements for the payment by defendant to plaintiff of one-hall of the proceeds of the sale of property, or to hear and determine any matters except whether the plaintiff was entitled to contribution from her husband for her support, and if found so to be, to make an order therefor. H¡e denied the charges made against him; alleged misconduct on her part by associating with other men against his protest; that she wilfully deserted him and left their home without his consent and during his temporary absence therefrom, and denied that she left for the causes alleged by her.

The Commissioner made findings and conclusions as follows: “The said Commissioner does find that he has jurisdiction of the parties hereto and of the subject-matter in controversy, and upon the issue joined and upon the evidence submitted, does find generally for the plaintiff and against the defendant, and does further find as follows: That the sum of Fifteen Hundred ($1,500.00) Dbllars is a reasonable sum for the support of the plaintiff and that the defendant should be required to pay to the said plaintiff the said sum of Fifteen Hundred ($1,500.00) Dollars, in the installments and at the times hereinafter set forth. That the said plaintiff should be allowed One Hundred ($100.00) Dollars expense money in attending the hearing of the above entitled proceeding, and the further sum of Two Hundred Fifty ($250.00) Dollars, attorneys’ fees in commencing said proceedings and for the conducting thereof, together with the costs of this proceeding, including the sum of Fifty ($50.00) Dollars Commissioner’s fees. That each and all of the said sums, 'together with the costs of this proceeding, should be charged and made a lien upon the personal property of the defendant, consisting of wines, liquors and cigars, bar-room fixtures and merchandise of every kind, character and description, now situated in the saloon of said defendant, in the City of Sheridan, Wyoming, and used in the conduct of said saloon business by said defendant. That said defendant should be enjoined from in any manner encumbering or disposing of said property hereinbefore mentioned, until the payments herein required to be made be paid and satisfied, save and excepting in the ordinary and usual course of conducting said saloon business, upon condition, however, that goods, merchandise and personal property so disposed of in said business in the ordinary and usual conduct thereof, shall be replaced by other property of the -same kind and character, out of the proceeds arising from such sale.”

The judgment given, made and entered by the Commissioner is, substantially, in the language of the findings above set out, making it a lien on the property described and enjoining any sale thereof except as stated, and requiring the $1,500 to be paid in monthly installments of $loo each, and the exepense money and attorneys’ fees to be paid forthwith; and then adjudges, “That the allowance herein made and the judgment hereby given be and the same hereby is considered permanent and a final adjudication of the property rights of the parties hereto.” Defendant filed a motion for a new trial, which was denied.

The plaintiff moved the District Court to confirm the judgment of the Court Commissioner. The defendant filed his objections to the findings and judgment and asked that the same be set aside. The court overruled the objections and exceptions of defendant and approved and confirmed the judgment of the Commissioner. Defendant brings error.

The statute relied upon to support these proceedings is Section 3937, Comp. Stat, 1910, and is as follows: “When the husband and wife are living separately, or when they arc living together, but the husband failing and neglecting to contribute to the support of the wife and children, or either, and no proceeding for divorce is pending the wife may, in behalf of herself or minor children, if any or either, institute a proceeding by petition setting forth fully her case and, upon five days’ notice to the husband, if he can be served personally with notice in the state, the judge majf hear the same in term or vacation, and grant such order concerning the support of the wife and children or either, as he might grant, were it based on a pending proceeding for divorce, to be enforced in the same manner, together with any remedy applicable in a court of equity, such as appointing a receiver and the like.”

It is perfectly clear that such contracts or agreements as the plaintiff alleges in her petition in this proceeding to have been entered into between herself and her husband, viz: that on a sale of his property he would pay her one-half of the proceeds, can be enforced, if at all, in the courts by a civil action and not otherwise. It is equally clear that in this proceeding neither the court, the Judge nor the Court Commissioner had jurisdiction to make a permanent and final adjudication of the property rights between the parties. For those reasons alone the judgment in this case was erroneous and will have to be reversed. But as the case will have to be remanded for further proceedings it is proper to state that the award of a sum in gross for the maintenance of the wife is not contemplated by the statute. In Doole v. Doole, 144 Mass., 278, (10 N. E., 811) the court said: “The provision of the statute, that the court may make such ‘order' as it deems expedient concerning the support of the wife’, must be construed with reference to the nature and purposes of the proceeding, and does not authorize a decree for a sum in gross, which looks to, and is based upon, the permanent future separation of the husband and wife. Such a decree may be proper where there has been a divorce, which establishes the permanent future status of the parties. But proceedings under this statute are designed to secure the temporary support of a wife who is separated from her husband for just cause, while the marriage relation exists and the cause for separation continues. A decree under the statute does not create a judicial separation, nor establish a permanent status for the future.” See also Kusel v. Kusel, (147 Cal., 57) ; 81 Pac., 295, and authorities therein cited, and Chapman v. Chapman, 74 Neb., 388; 104 N. W., 880. We- deem it proper, also, to call attention to Section 923, Comp. Stat., ígio, which provides that “the fees of the District Court Commissioner shall be fixed by the District Court in which their services are rendered and shall be taxed as costs.” For the reasons above stated the judgment of the District Court is reversed and the cause remanded for further, proper proceedings not inconsistent with this opinion.

Reversed.

Potter, C. J., and Scott, J., concur.