Burnside v. Wand

77 Mo. App. 382 | Mo. Ct. App. | 1898

Biggs, J.

The plaintiff herein obtained a decree of divorce from her husband James Burnside at the June term, 1894, of the circuit court of the city of St. Louis. The portion of the decree as to alimony is as follows: “And it is further ordered, adjudged and decreed by the court, that for the alimony and maintenance of Elizabeth J. Burnside, and the maintenance of said minor children, the sum of fifty dollars per month is to be paid by the said James Burnside to the said Elizabeth J. Burnside on the first day of each month, the first payment to be due and payable on July 1st, 1894, and fifty dollars to be due and payable on the first day of each month thereafter, and that she have execution therefor, the said provision for monthly alimony and maintenance being subject however to be modified by the court hereafter, on proper showing.” It will be observed that the decree provided for execution for the instalments of alimony, but it did not require Burnside to give security therefor as might have been done. (R. S. 1889, sec. 4505 and 4506.) In February, 1895, Burnside being in arrears in the payment of alimony, the plaintiff on motion and notice in the original suit moved the court to require him to give security for its payment. The circuit court sustained the motion and required Burnside to enter into a bond in the penal sum of $6,000, conditioned for the payment thereafter of the alimony according to the terms of the original decree. The bond was given and the defendant herein signed it as surety. The present action is on the bond, the plaintiff alleging a failure on the part of Burnside to pay several instalments of alimony. On the trial the defendant objected to the admission of any testimony, for the alleged reason that the bond was given without warrant of law, in that the circuit court had no right at a subsequent term to change or modify the original decree for alimony, so as to require security for its payment. This objection was overruled and the defendant excepted. The judgment was for the plaintiff and the defendant has appealed.

The exception stated above presents the only question for review.

It is conceded that the circuit court at a subsequent term had power to alter or modify the decree as to the amount of the alimony or the manner or time of its payment, but it is asserted by appellant that the court had no authority to require security for its payment. From this promise counsel argues that the bond in suit is a nullity.

M°íthlCo7á°vN

All concur.

After providing for the allowance of alimony for the wife and that the court might require the husband to give security for its payment, the last paragraph in section 4505, supra, reads as follows: “The court, on the application of either party, may make such alteration, from time to time, as to the allowance of alimony and maintenance, as may be proper, and the court may decree alimony pending the suit for divorce in all cases where the same would be just, whether the wife be plaintiff or defendant, and enforce such order in the manner provided by law in the other cases.” The succeeding section (4506) states that when the decree for alimony is from year to year, such decree shall not be a lien on the real estate of the husband, but that an execution therefor will be, so long as it lawfully remains m the hands of the officer. Then this follows: “In lieu of the lien of such decree for alimony from year to year, it is hereby provided that the party against whom such decree may be rendered shall be required to give security ample and sufficient for such alimony; but where default has been made in giving such security, the decree for alimony from year to year shall be a lien as in case of general judgments.” The only other section having my bearing on the question presented is 4511, which reads: “No petition for review of any judgment for divorce, rendered in any case arising under this chapter, shall be allowed, any law or statute to the contrary notwithstanding, but there may be a review of any order or judgment touching the alimony and maintenance of the wife, and the care, custody and maintenance of the children, or any of them, as in other cases.” The only case cited in which the question here was under consideration is that of Wright v. Wright, decided by the supreme court of Wisconsin, and reported in' the 43 N. W. Rep. 145. There it was held substantially that under the Wisconsin statute subjecting a judgment for alimony to the continuing power of the court, though the original judgment of divorce did not provide for security for the alimony, the same might be required by the court at any time thereafter. The Wisconsin statute provides for security for alimony, and the section providing for subsequent revisions of decrees as to alimony is substantially in the language of our statute except it contains the additional clause that the court “may make any judgment respecting any of the said matters which such court might have made in the original action.” (Section 2369, Revised Statutes of Wisconsin, 1889). Under this statute the right of the court to require seóurity at any time can not be questioned. The clause quoted puts the matter beyond controversy. We think, however, that a fair and liberal construction of our statute must lead to the same conclusion. It seems to us to be an unreasonable construction that the court is confined' to a modification of the order as to the amount of the alimony, and is powerless to enforce its payment or security by all statutory methods. Suppose the original decree failed to provide for an execution in the event the alimony was not paid, is it possible that the court at a subsequent term could not so provide by a supplemental order? We therefore conclude that the circuit court had the authority to require Burnside to give the bond, and therefore the defendant’s exception must be overruled. It is suggested that the bond is good as a common law bond. Under our view it is not necessary to decide that question. As there is no dispute as to the execution of the bond or as to the alleged breaches of its conditions, the judgment of the circuit court will be affirmed.