Methvin v. Methvin

15 Ga. 97 | Ga. | 1854

By the Court.

Starnes J.

delivering the opinion.

[1.] In the case of McGee vs. McGee, (10 Ga. R. 477,) it was decided that pur Superior Courts have the power which the Ecclesiastical Courts had in England, to grant alimony pendente lite, as incidental to their right to entertain the suit for divorce.

In these Courts it was not the practice, very strictly, to scrutinize the conduct of a wife, for the purpose of determining her right to temporary alimony. This allowance was made, almost as matter of course, upon a proof of marriage and pendancy of suit for divorce. (2 Burn’s Ecc. L. 433, 436. 2 Dick. R. 498, 582. Cro. Car. 10.) Mix vs. Mix, (1 John. Ch. R. 110.)

The Courts held that it was better to wait until the trial, when both parties could be heard and the case fully investigated, before they undertook to reject the claim for alimony.

[2.] The Court, however, may look into the facts, so as to ascertain the amount of the separate fortune of the wife, and regulate its grant by that; .for if the wife have a considerable estate, and do not need this allowance, in order that she may be put in a position to prosecute and maintain her suit, this, of course, should influence the Court in the exercise of its discretion. The incidental power to make this allowance, arises from •the fact that the wife, by her coverture, should not be placed in a position by which she has a right, without the ability to enforce and secure a remedy for its violation.

The objections so strenuously urged to this order for temporary alimony, growing out of the conduct of the wife, her long acquiescence without suit, &c. may be of much service upon the trial; but for the reasons given, should not influence, the Court in the grant of temporary alimony.

As well as we can form an opinion from the record, we think '' that the allowance was altogether too great, and we are not • surprised that the counsel for the defendant, with the firm belief which he expresses in the justice of his client’s cause, has :felt this to be a grievous wrong to that client. It is the result, 'however, of a discretion which, for wise and benevolent purposes, the law has intrusted to the Circuit Judge; and with which we think we should not interfere, unless a more flagrant abuse ■ of it appears, than is presented in this record.

.Judgment aflirmed.