| Kan. | Jan 15, 1895
The opinion of the court was delivered by
This was an action brought by Eva L. Johnston against William L. Johnston for divorce and alimony. When the case was called for trial, on application of the plaintiff, the action, so far as it sought a divorce from the defendant, was continued for trial, and the case for divorce is still pending, upon the petition and answer; but the court proceeded, in the absence of the defendant, to hear the case for alimony only, and rendered judgment against the defendant and in favor of the plaintiff for $3,000, with costs taxed at $18.05, and directed execution. The judgment was not only a personal one against the defendant, which he was required to pay immediately, but subsequently he was arrested and imprisoned for failing to pay the same. The judgment cannot be regarded as having been rendered for temporary
Upon the petition, if the whole case had been regularly tried upon its merits, permanent alimony might have been allowed as an incident to the divorce, or if, upon the trial, the parties appeared to be in equal wrong, the court might, for good cause, have made an equitable order for the control and disposition of the property. (Civil Code, §§ 639, 646; Birdzell v. Birdzell, 33 Kan. 433" court="Kan." date_filed="1885-01-15" href="https://app.midpage.ai/document/birdzell-v-birdzell-ex-rel-tucker-7886485?utm_source=webapp" opinion_id="7886485">33 Kas. 433; Busenbark v. Busenbark, 33 id. 572.)
“ When a divorce shall be granted by reason of the fault or aggression of the husband, the wife shall be restored to her maiden name if she so desires, and also, to all the property, lands, tenements, hereditaments owned by her before her marriage or acquired by her in her own right after such marriage, and not previously disposed of, and shall be allowed such alimony out of the husband’s real and personal property as the court shall think reasonable.” (Civil Code, § 646.)
Alimony may be allowed in a separate action without a divorce. (Civil Code, § 649; Jenness v. Cutler, 12 Kas. 517; Somers v. Somers, 39 id. 132.) But this action was not brought under § 649, and, when the case was tried and determined, the petition was not reframed under that section, nor was the action for divorce dismissed; that is still pending for trial. When the case was called for trial, under the allegations of the petition, alimony was only an incident to a divorce. The principal cause of action was continued, and the incident
In this case, before the divorce was granted, and .while the action for divorce was pending, an adjustment of the property interests of the parties was decreed. The petition for the divorce and the answer have not yet been disposed of. The issues thereon are for trial. The court committed error in continuing, at the instance of the plaintiff, the action for divorce, and then proceeding to hear and determine the amount of permanent alimony. Upon the pleadings, the question of permanent alimony should have been deferred until the divorce had been granted or refused. (Civil Code, §§ 643, 646.)
The suggestion that the judgment for permanent alimony cannot be reviewed, because, owing to the absence of the defendant and his attorney at the trial, no exception was taken, is without force. The error complained of is apparent upon the record and may be examined. (Koehler v. Ball, 2 Kan. 160" court="Kan." date_filed="1863-10-15" href="https://app.midpage.ai/document/kœhler-v-ball-7882008?utm_source=webapp" opinion_id="7882008">2 Kas. 160; Lender v. Caldwell, 4 id. 339; Wilson v. Fuller, 9 id. 176; Wood v. Nicolson, 43 id. 461.)
The judgment of the district court will be reversed. The defendant will be discharged, and the cause remanded for further proceedings in accordance with the views herein expressed.