32 Nev. 264 | Nev. | 1910
By the Court,
This is an original proceeding in certiorari to review a certain order for judgment and judgment to the effect that the respondent Margaret G-. Kapp have execution against the property subject to execution of the petitioner herein, and thereby to recover the amount of $2,100 due from petitioner herein to the respondent Margaret G. Kapp on account of unpaid alimony pendente lite, allowed by the court in the divorce proceedings, now pending, instituted by said respond
The method adopted to secure this order and judgment was a petition or complaint reciting the prior order for alimony pendente lite, the nonpayment thereof, the amount of accrued and unpaid alimony, and the refusal of the defendant to pay the same, and praying for a judgment that the plaintiff have execution against the property of defendant subject to execution. This method of procedure is substantially that of the writ of scire facias and is unknown to our practice. (Humiston v. Smith, 21 Cal. 130; Cameron v. Young, 6 How. Prac. 372; Alden v. Clark, 11 How. Prac. 209; U. S. v. Ensign, 2 Mont. 396; Wilson v. Shively, 10 Or. 273; 19 Ency. Pl. & Pr. 266; Comp. Laws, 3096.)
Counsel for respondent, however, says: "This proceeding ivas taken, not as an action, but to get the various sums due united into one order, and the order of the court, that the same should be enforced by the writ of execution” and that "this proceeding, even if erroneous, was within the jurisdiction of the court.” Execution “will not ordinarily issue except to enforce a final judgment. An interlocutory order for alimony pendente lite will not be enforced by execution except where there is a special statutory provision warranting it. (14 Cyc. 796.) We have been unable to find a single case wherein an interlocutory order for alimony pendente lite was enforced by execution.
Section 27 of "An act relating to marriage and divorce” (Comp. Laws, 507) provides: "In any suit for divorce now pending, or which may hereafter be commenced, the court or judge may, in its discretion, upon application of which due notice shall have been given to the husband, or bis attorney, at any time after the filing of the complaint, require the husband to pay such sums as may be necessary to enable the wife to carry on or defend such suit, and for her support and the support of the children of the parties during the pendency of such suit; and the court or judge may direct the application of specific property of the husband to such object, and may also direct the payment to the wife for such purpose of any
Counsel for respondent relies upon the expression, "or by other means, according to the usages of courts” to support the authority of the court to order the judgment that execution issue; but the enforcement of interlocutory orders for the payment of money by execution does not appear to be "according to the usages of courts” but may be resorted to only where the statutes specifically so provide. A few states have statutory provisions that may warrant the issuance of an execution to enforce any order for the payment of money. (Halstead v. Halstead, 21 App. Div. 466, 47 N. Y. Supp. 649; Van Cleave v. Bucher, 79 Cal. 600, 21 Pac. 954.) The only provision for an execution in our civil procedure is after final judgment.
The order or judgment cannot be supported upon the theory that it directs the application of specific property of the defendant to such object, for no specific property is mentioned in the order or judgment. If execution were permitted to issue, it would be left entirely with the sheriff under the law governing in such cases.
Whether the trial court is or is not empowered to order a sale of specific property of the husband, if deemed necessary, is a question not presented in this proceeding; but we are convinced that it has no power to enter a general order or judgment that execution issue as was done in this case.
The order and judgment complained of were without the jurisdiction of the court and void, and the same are ordered annulled.
