12 Mont. 122 | Mont. | 1892
There are two questions brought here for determination by this appeal. The first relates to the jurisdiction, in equity, of the District Courts of this State, and may be stated by the following proposition: Have the District Courts of this State power, in the exercise of their equity jurisdiction, to enforce maintenance of a wife by decreeing proper relief in an action brought by her against her husband, independently of an action for divorce, where it is shown that he, without just cause, has abandoned her, or by his cruelty or other improper conduct has given her just cause for living separate and apart from him, and she is without means of support, and he is able to maintain her?
An action of this character, if maintainable at all, would naturally lie within the equitable jurisdiction of the District Court. The subjects of equity, as well as common-law jurisdiction, are so well defined there can seldom arise a dispute as to whether a particular action for the enforcement of rights or the redress of wrongs lies within the cognizance of one or the other, or whether such action is not within either of these jurisdictions. In relation to the question just propounded, however, there have been and still are differences of opinion in the courts and among able jurists; and the discussion of it has sounded the depths and surveyed the scope and circumference of the equity jurisdiction of courts where it has been brought in question.
It is unnecessary to recite the facts involved in the case at bar in order to treat this proposition. It may be treated as a question of law, relating to the equity jurisdiction of the court, without reference to any particular action.
That the marriage relation lays upon the husband an obligation to furnish his wife necessary and comfortable maintenance, commensurate with his ability to provide, is a proposition upon which there is no dispute. It is an obligation imposed by law as one of the conditions of the marriage contract, and is recognized by all courts of justice, and is enforced, in proper
In this way it will be seen that even courts of common-law jurisdiction not only recognize, but to some extent enforce, performance of that obligation. The jurisdiction exercised by the common-law courts was usually explained on the theory that the law presumed the wife to be the agent of the husband to the extent of authority to obtain upon his credit necessary personal supplies. But it is plainly observable by an investigation of these cases that the common-law courts proceed upon a different ground than the mere relation of principal and agent; for when the husband had abandoned his wife, or driven her away by cruelty or other improper conduct, and had sought to avoid responsibility of her maintenance by giving notice forbidding parties to furnish her supplies, and attempting to revoke her authority in that respect, still the common-law courts, notwithstanding such notice, held him bound for her necessary supplies, by an obligation irrevocable at will, arising by virtue of the marriage relation, and gave judgment against him. (Schouler on Domestic Delations, § 66; Sykes v. Halstead, 1 Sandf. 483; 1 Bishop on Marriage and Divorce, 572, and cases cited.) It will be observed in these cases, too, that, where the wife was living separate and apart from her husband, it was always a proper inquiry whether she had just cause for so doing; and, if she had not, that was a good defense. It seems to be clear, then, that the common-law courts proceeded in such cases upon a different principle than the law of agency alone, and founded their judgments on the obligation of the husband to support his wife, even separate and apart from his habitation, where by his conduct he had justified her separation, or where he had, without cause, forsaken her — an obligation which he could not terminate at will, as may be done in case of principal and agent. (2 Kent Com. 146; Sehouler on Domestic Delations, § 66; 1 Bishop on Marriage and Divorce, §§ 550-572,
Although the common-law courts will give judgment against the husband in such cases, it must be admitted by all to be an uncertain and inadequate relief; for in many cases she may be unable to obtain credit under such circumstances, where she can only offer the chance of compelling payment by suit against a husband who is endeavoring to escape such liability. Her position is also embarrassed by the reluctance of parties generally to becoming directly or indirectly implicated in family troubles, or to undertake to show justification for the conduct of the wife, which operates as a powerful influence in deterring persons from giving her credit. The relief offered by the common-law courts is inadequate for still other reasons. While it may succeed for a brief period in some cases, the derelict husband is left free to carry out his purpose, to abandon and neglect the support of his wife, and avoid such judgments altogether by disposing of his property, or by carrying it beyond the jurisdiction. In this way he not only iguores his obligation, but sets at naught the attempt of the common-law courts to compel its performance. There are other aspects of this method of granting relief which ought not be passed without observation. If that remedy happens to be effectual in some cases, because the husband fails to use the means within his power to escape the liability, that method of enforcing maintenance would involve a multiplicity of lawsuits; for the wife must usually go-to various parties to secure supplies, whereby would arise a separate cause of action in favor of each party from whom supplies were obtained; and, as often as one collection was made,
This class of actions was not generally entertained by the English chancery court for the obvious reason that in England the ecclesiastical tribunal existed, to which, as was conceded by all, such adjudications peculiarly belonged. There was therefore no reason in general for the chaucery court in England to concern itself with actions seeking such relief. (Fonb. Eq. [4th Am. ed.] 98, note 105.) But it nevertheless seems plain that had not another court existed iu the judicial system <of England, which had jurisdiction of this class of cases, there is every analogy which would have brought those cases within the jurisdiction of the court of chancery. This court took cognizance of other cases concerning marital rights. It enforced against the husband ante-nuptial contracts and settle
It is proper at the outset of this investigation to inquire whether, by statute, any provision has been made in relation to the right in question, and the remedy to be applied in case of its non-fulfillment. Our statute provides that the District Court, “sitting as a court of chancery,” may, for certain causes specified, decree a “dissolution of the bonds of matrimony
It is contended that these provisions of the statute as to the decree for alimony and maintenance “when divorce is granted,” by implication, exclude from the courts the jurisdiction to enforce the maintenance, except in an action where divorce is decreed. Some have so held, but upon this phase of the question, as upon nearly all aspects of it, eminent authorities are opposed to one another in the views entertained. Our own conclusion upon this particular feature of the question is that the great weight of reason is against the idea that the legislature, in adopting the statute referred to, intended any regulation of the right of the wife to maintenance, or the obligation of the husband to> furnish the same, arising and existing by virtue of the marriage bond prior to, and in no manner dependent upon, the dissolution of that bond by decree of court, or that by such statute the legislature intended to take away, or in any manner control whatever jurisdiction the courts may have had to enforce the fulfillment of that obligation in an action independent of a proceeding for divorce. In construing or applying a statute the cardinal rule, always applicable, is to seek the intention of the legislature. The simple question then is, did the legislature, in providing for the granting of divorces on certain prescribed grounds, and providing that, when divorce was decreed, alimony and maintenance might also be decreed, intend to have it inferred or implied therefrom that the obligation of the husband to maintain his wife should not be enforced, unless the
We therefore return to the main question, as to whether there is in the equity courts of this State any jurisdiction to interfere on behalf of a wife deserted and left destitute, without cause, and compel the husband, if able, to support her. This subject has led to a very close investigation by the American courts (see cases cited in briefs of counsel) of the manner in which the chancery court of England dealt with such cases. The jurisdiction exercised by that court upon kindred subjects has already been adverted to. But upon this particular branch of adjudication, as is affirmed by some, the holding of the English chancery court has not been harmonious; and, while this criticism is probably correct, it must still be admitted that the doctrine finally became settled, to the effect that cases where such relief was sought would not be entertained in the chancery court, but left to the spiritual court. This was, of course, the natural result when we consider the judicial system prevailing at that time in -England. Even with these conditions, however, the English chancery court did not seem to have construed its jurisdiction as so unyieldingly restricted in this matter that no relief could be granted in that court. There is a notable case as late as 1811, where Lord Eldon, one of the greatest and most conservative of English chancellors, ordered certain property in probate devoted to the support of a deserted wife. It is not clearly stated in the opinion or statement of the master that this property belonged to the husband by descent, but that seems to foe the case from the context; for if the property had descended to the wife in her own right, according to the course of equity, there would have been no hesitation whatever in applying it to her separate maintenance, where she was abandoned by her husband. In ordering the property applied the lord chancellor said: “I have a strong impression on my mind that this has been done; and, independent of precedent, I think the court
In the American States the ecclesiastical court was not made a part of the judicial system. There being a court of chancery or equitable jurisdiction, however, and there being the conditions involved, whereby that court had grounds, upon principle, to take jurisdiction of such cases, it is not at all strange that some of the American courts of equity entertained them; and thus was established what Judge Story termed the broader jurisdiction asserted by the American courts in such cases. In his work on Equity Jurisprudence, he says: “In America, a broader jurisdiction in cases of alimony has been asserted in some of our courts of equity; and it has been held that if a husband abandons his wife, and separates himself from her without any reasonable support, a court of equity may in all cases decree her a suitable maintenance and support out of his estate, upon the very ground that there is no adequate or sufficient remedy at law in such a case. And there is so much good sense and reason in this doctrine that it might be wished it were generally adopted.” (2 Story on Equity Jurisprudence,^ 1423.}
It will be seen from these remarks that this eminent authority on equity jurisprudence saw clearly that these cases involved conditions which, upon fundamental principles of equity, would bring them into that jurisdiction, i. e., there was a legal right of the wife to maintenance, existing and deeply implanted in the law — a right capable of judicial enforcement — and that the common-law courts, although recognizing and attempting to enforce such right, by reason of their forms of procedure, fell far short of giving adequate relief. There was therefore the ground in principle for equitable relief.
Since Judge Story wrote, the doctrine of the American courts of equity, which he mentions, has steadily been gaining ground, until now it is held, without the aid of statute, in a large number of the States, as will be seen by reference to citations of appellant’s brief. The latest case we have examined was-
The Supreme Court of the United States, in 1858, had occasion, in the case of Barber v. Barber, 21 How. 582, incidently to review a number of cases in which the equity jurisdiction was held to extend over this class of cases; and no expression is found in the opinion, showing that the court regarded the exercise of such jurisdiction as extraordinary, or in any manner an arbitrary assumption of a jurisdiction not properly belonging to courts of. equity on principle.
Over against the holding which Judge Story mentions, there are courts of eminent authority holding the contrary. (See cases cited by counsel for respondent.) But the divergence of views upon this subject held by the American courts may not be without reasonable explanation, which would apply at least to some States. While there is a general harmony in the American courts of equity with one another, and with the English court of chancery, in the practice, procedure, and principles applied, and the precedents emanating from them may be safely referred to as authority in cases lying within their jurisdiction, still, when the question is as to the extent of the equitable jurisdiction possessed by courts of one State, the determination of courts of another as to the extent of their own jurisdiction cannot, as a rule, be relied on as furnishing an exact criterion for measuring the boundaries of the jurisdiction in the former State, unless the statutory or constitutional provisions governing the subject are substantially alike. This arises from the great variation in the constitutional and statutory provisions establishing and defining such jurisdiction in the different States. Therefore, for example, to quote from Massachusetts, as denying that the equitable jurisdiction of their courts extends to cases like the one at bar, cannot be regarded strictly as authority for denying that such jurisdiction belongs to equity courts at all, nor that such jurisdiction may not pertain to the
These variations in the scope of the equitable jurisdiction granted to the federal courts, and that possessed by the courts of ' the various States, is fully explained by Mr. Pomeroy in his great work on Equity Jurisprudence. He says: “In some of the States, this statutory delegation of power is so broad and comprehensive that the jurisdiction which it creates is substantially identical with that possessed by the English court of chancery, except so far as specific subjects, like administration, have been expressly given to different tribunals; but in others the delegation of power is so special in its nature and limited in extent that a reference to the statutes themselves, on the part of the courts, as the source and measure of their jurisdiction, is a matter of constant practice and of absolute necessity. A correct knowledge of these statutory provisions in the various States is of the highest importance from another point of view. Without it the force and authority of decisions rendered in any particular State cannot be rightfully appreciated by the bench and bar of other commonwealths.” (1 Pomeroy’s Equity Jurisprudence, § 283.) In the same chapter the author brings to view the statutory and constitutional provisions under discussion. It is therefore not surprising, when these conditions are considered, to find different views held by different courts, ■ when the question turns upon the extent of the equitable jurisdiction possessed.
Mr. Bishop, in his valuable work on the subject of Marriage and Divorce (vol. 2, § 356, 6th ed.), exerts the great weight of
So the common-law court must try the question whether the wife was abandoned without cause, or compelled to withdraw and live separately. In other words, these conditions must be shown before judgment can be given in favor of a third party for necessaries furnished her living separately from her husband. Then, is not the judgment in such case an affirmation by the common-law court that the wife had just cause for living in separation? And, if the conditions thus judicially affirmed as sufficient ground still exist, such judgment would not be far from judicially sanctioning her continuance of the separation. It would at least affirm indirectly that as long as the cause for separation, which was adjudged sufficient, existed, she would be justified in living separate and apart. Yet the jurisdiction of the common-law courts to give such judgments does not appear to be questioned on the ground that the same amounts to adjudging the wife justified in living apart from her husband, which, if decreed in terms, would amount to a decree of divorce a mensa et ihoro. The proposition, however, is held up before the equity court as an all-sufficient “ difficulty,” whenever it is called upon to do, in a more adequate, direct, simple, and just manner, the very thing which the common-law court fearlessly
We will close the inquiry upon this branch of the case by bringing to view certain statutory and constitutional provisions of this State, which to some extent, we think, should influence our determination. The statute provides that: “Women shall retain the same legal existence and legal personality after marriage as before marriage, and shall receive the same protection of all her rights as a woman which her husband does as a man; and for any injury sustained to her reputation, person, property, character, or any natural right, she shall have the same right to appeal in her own name alone to the courts of law or equity, for redress and protection, that her husband has to appeal in his own name alone.” (§ 1439, div. 5, Comp. Stats.) Our Constitution provides that “the District Courts shall have original jurisdiction in all cases at law and in equity, .... and for such special actions and proceedings as are not otherwise provided for.” (§ 11, art. viii.) And, further, that “there shall be but one form of civil action, and that law and equity may be administered in the same action.” (§ 28, art. viii.) And, further, that “courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property, or character, and that right and justice shall be administered without sale, denial, or delay.” (§ 6, art. iii.) This latter-provision was, we think, set before the courts, by the framers of the Constitution, as a tenet for consideration in a case like this, where clearly there is an established right existing, subject to judicial enforcement, and the question is raised on purely artificial grounds, as to whether such right shall be enforced in such an action and in such jurisdiction as by its practice and methods of procedure can insure an appropriate, just, and adequate relief, or whether there shall be a
The second proposition of law to be determined in this case will be developed by a brief statement of facts set forth in plaintiff’s complaint. Among other things, it is alleged that plaintiff and defendant intermarried on or about the ninth day of September, 1879, at Watkins Glen, Schuyler County, State of New York, and lived together as man and wife until October 24, 1886; that from September, 1882, until October, 1886, they resided in the city of Helena, Territory of Montana; that in May, 1887, defendant without any cause or provocation on the part of plaintiff, wilfully abandoned and deserted her, and compelled her to live separate and apart from him; that, from the last date up to about seven months prior to the commencement of this action, defendant contributed the sum of fifty dollars per month, and at times seventy-five dollars per month, for plaintiff’s support; that, for about seven months last past, defendant has neglected and refused, and still refuses, to furnish plaintiff any money whatever, and that she is now wholly without means of support, and is entirely dependent upon her personal exertions and the contributions of her friends for support of herself and infant son, the issue of said marriage, now in plaintiff’s care and custody. That about April 24, 1887, at the city and State of New York, defendant, by threats and menaces (particularly alleged and described), compelled plaint
Despondent interposed a demurrer to this complaint, which was sustained by the court, and plaintiff appealed from that order.
Appellant’s counsel succinctly state their' position on this branch of the case as follows: “Are the parties hereto husband and wife? Is said decree void or voidable? If void, we will then claim that plaintiff is the wife of defendant, and is entitled to maintain this action. If voidable, then we concede that we are premature in our action.”
It is not contended by appellant that the decree of the territorial District Court, dissolving the bonds of matrimony which theretofore existed between plaintiff and defendant, is void for any reason that appears on the face of such decree. It was
This decree must be regarded, of course, as if pronounced by a court of this State, as the transformation from territorial to State form of government is for many purposes to be considered as a continuity of government. (Const, art. xx. § 2.)
The theory of appellant’s counsel is that the judgment is void, not by reason of any fact appearing on the face of the proceedings, but by reason of the facts pleaded as to the conduct of defendant, which led up to the court obtaining jurisdiction to grant said decree. They contend that, by reason of those facts pleaded (which are deemed admitted on demurrer), it is shown that the court had no jurisdiction over the person of appellant, who was defendant in said proceedings for divorce. On this premise they submit “ that wherever want of jurisdiction over the person of defendant is shown, the judgment rendered without such jurisdiction is absolutely void, and is a nullity, and that this want of jurisdiction may as well be shown by evidence aliunde the record as from the face of the record; that in either case, if this want of jurisdiction is shown, the decree is absolutely void, and of no force or effect.”
It seems to' us that, if such a premise be followed, it would sweep away all distinction between judgments void for reasons manifest on the face of the record, and those which, as appears by the record, are valid, and must be given full faith and force until impeached in a proper proceeding, by establishing facts aliunde the record, sufficient for that purpose. "While there is much conflict relating to certain questions of law concerning judgments, we think it may be safely said to be almost uniformly settled now that domestic judgments of courts of general jurisdiction, valid on their face, cannot be collaterally attacked in courts of the same State, by showing facts aliunde the record, although such facts might be sufficient to impeach the judgment in question if brought to bear upon it in, a proper proceeding. The proposition in this case appears to be, to open a way through
Upon the view that said decree was not void, but only voidable in a proper proceeding for that purpose, the court sustained respondent’s demurrer, and in our opinion the ruling is correct. The judgment will therefore be affirmed.
Affirmed.