15 Mont. 6 | Mont. | 1894
— This is a suit for divorce, instituted iu the second judicial district court, in which this appellant is defendant. On the twelfth day of August, 1893, the court, made an order requiring and directing the defendant to pay plaintiff the sum of forty dollars per month as alimony pen-dente lite. It seems that defendant complied with this order until March, 1894. On February 19th the court made an order directing the defendant to pay plaintiff sixty dollars as counsel fee. Defendant having failed to pay plaintiff the alimony allowed and ordered to be paid for the month of March, 1894, and subsequent thereto, as well as said counsel fee, lie was ordered to appear and show cause why he should not be adjudged guilty of contempt of court; and, having so appeared,, he was, on the twenty-eighth day of April, 1894, adjudged. guilty of contempt of court for not complying with the said orders of court, and committed to the county jail of Silver-Bow county until said alimony and counsel fee should be paid.. On May 18th the defendant filed in the court his petition and affidavit praying that the order adjudging him guilty, and committing him to the county jail for contempt of court, be modified, vacated, and set aside. This petition alleges that defendant had complied with said order to pay alimony until
In State ex rel. Nixon v. Second Judicial District Court, 14 Mont. 396, which was a proceeding in certiorari in aid of habeas corpus in this court, instituted by this appellant to be discharged from custody under the order now involved in this appeal, this court said: “ If the relator herein had made a regular application for a reduction of the alimony to the district court in which the suit was pending he would have presented all of this showing as to his want of faculty to pay the alimony; that plaintiff could have rebutted such showing, and the court would then have determined whether the alimony should be reduced. On such determination an order would be' made, from which the defendant could have an appeal, and on such appeal this court would have made a review. But, as the matter is now before us, the question of reduction of the alimony has never been tried or determined in a proper proceeding by the district court, nor was there opportunity offered to so try and determine.”
In the case just cited this court held that a modification of the judgment for alimony should have been sought by a proceeding for that purpose. It. appears from the record that the appellant, by filing his petition for a modification or the vacation of the judgment for alimony, was proceeding in accordance with the views of this court, as announced in State ex rel. Nixon v. Second Judicial District Court, supra. By filing his petition for such relief he tendered an issue of fact involving his faculty or ability to comply with the order of the court.
Reversed.