Guess v. Smith

56 So. 166 | Miss. | 1911

Anderson, J.,

delivered the opinion of the court.

The allegations of appellee’s bill, charging that appellant’s decree for alimony against him was procured by fraud, are wholly insufficient in law, and therefore, if proven, would not entitle appellee to a judgment setting aside such decree.

It is contended that the decree for alimony is void, because the summons on which it was rendered was void in failing to inform the appellee that appellant’s bill was one praying for alimony, as well as divorce. The summons in question is in the regular form, except that it commanded the defendant to appear and answer a bill “for divorce now on file,” etc. It is not necessary for the summons to state the nature and purpose of the bill. Section 3913, Code of 1906, provides that process, to bring in a defendant either at law or in chancery, shall, be a summons, which shall command the officer to summon the defendant to appear and answer on the return day; and section 3920, Code 1906, prescribes the form of summons by publication, as follows: “State of Mississippi. To - (the defendant): You are commanded to appear before the chancery court of the county. of-, in said state, on the-Monday of-, A. D.-, to defend the suit in said court of-- (and others), wherein you are a defendant. This-day of-, A. D.-. -, Clerk.” t

The fact that the summons in this case undertook to, and did in part, inform the defendant of the nature and cause of the suit, but failed to inform him of its whole object and purpose, did not render it void. All that it is necessary for a summons to contain is what is above set out in the form for a summons by publication, the blanks therein to be properly filled out. If the defendant réfuses to obey the command of tbe summons, it is at bis peril. He has no right to look to a recital, inserted in the summons, without authority of law, by the officer issuing it, as to the nature of the cause. Resort to the declaration, if a suit at law, or to the bill, if a suit in chancery, is the defendant’s only source of information as to the nature of the suit against him, on which he is entitled to rely..

Section 1673, Code 1906,-is as follows: “When a divorce shall be decreed from-the bonds of'matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders touching the. care, custody, and maintenance of the children of the marriage, and also touching the maintenance and alimony of the wife, or any allowance to be made to her, and may, if need be, require sureties for the payment of the sum so allowed; and the court may afterwards, on petition, change the decree, and make from time to time such new decrees as the case may require.” It will be noticed that the last clause of this statute authorizes the court, rendering the decree for alimony, afterwards, on petition, to change the decree, and from time to time make such new decrees as the case may require.

* It is argued that this petition must be filed in the original cause in which the decree for alimony was entered, and cannot be by independent petition, as was filed in this 'case. We cannot give our assent to the soundness of this proposition. It is necessary only that the petition be filed in the same court rendering the decree for alimony, and this was done in this case. The manner of styling the cause in the petition, and whether it is filed in the original cause, or an independent case is made of it, is wholly immaterial. It-may not be filed in another court than the one rendering the decree sought to be altered, because such other court would have no authority as to such a decree.

There was a decree rendered for absolute divorce, and temporary and permanent alimony were commuted to a gross sum of two hundred and fifty dollars, and decreed to be paid at once, awarding’ execution on failure of payment. Therefore, when this suit was brought, the right of the wife to the alimony decreed had accrued. It was overdue and unpaid. This is not a case of a decree for permanent continuing alimony, to be paid in fixed amounts at stated intervals in the future.

Appellant contends that the court is without authority, under the last clause of section 1673, supra, at a subsequent term, to alter or change this decree. Our judgment is this contention is sound, and is supported by the authorities. New York, Illinois, and Nebraska have statutes similar to ours. In Krauss v. Krauss, 127 App. Div. 740, 111 N. Y. Supp. 788, in passing on the question whether at a subsequent term the court could modify a decree for alimony already accrued; the court said: “It will be observed "that under the decree alimony at the rate of fifty dollars per month accrued to the plaintiff. As the 1st day of each month came the plaintiff was entitled to that award of alimony. It became presently cine and payable. We are of the opinion that she had a vested right thereto, of which she could not be deprived by any subsequent action of the courts or of the legislature.” To the same effect are Craig v. Craig, 163 Ill. 176, 45 N. E. 153; Beard v. Beard, 57 Neb. 754, 78 N. W. 255.

When alimony is commuted to a lump sum, to be paid presently, as in this case, in fixing the amount the court takes into consideration the possible remarriage of the wife to a husband able to support her, and any and all other contingencies which might arise. It is a settlement between the husband and the wife as to the interest of the latter in his property, and as to the extent of. the husband’s duty to contribute to her maintenance and • support. The decree is final after the term at whi'ch it is rendered. Reversed and remanded.