23 Minn. 214 | Minn. | 1876
Upon the points presented by counsel in this court, this may be taken to be an appeal from the order of the court below refusing to “ revise and alter” a judgment for alimony, and refusing to direct the plaintiff to release and deliver up a certain mortgage alleged to have been obtained by duress, in part-satisfaction of such judgment. It is first claimed that the judgment should have been revised and altered on account of errors appearing upon its face, or errors in the proceedings of which it was the result. As with respect to judgments in general, the correction of such errors is to be accomplished either by a motion for a now trial or by appeal. Grant v. Schmidt, 22 Minn. 1.The authority given by Gen. St. c. 62, § 25, to revise and alter a judgment for alimony, is to be exercised only upon new facts occurring after the judgment, or perhaps, also, upon facts occurring before the judgment, of which a party was excusably ignorant at the time when the judgment was rendered. Perkins v. Perkins, 12 Mich. 456 ; Blythe v. Blythe, 25 Iowa, 266 ; Fisher v. Fisher, 32 Iowa, 20 ; Wilde
In this case there was no fact existing at the time of the rendition of the judgment, and bearing upon the matter of alimony, of which defendant ivas excusably ignorant. The only new fact insisted upon is the death, since the rendition of the judgment, of a child of the parties thereto, the care, custody, and education of which .were awarded to plaintiff. But as, by the terms of the judgment, the alimony in question was awarded as “her (the plaintiff’s) permanent alimony,” and not as an allowance for the child, the fact of the child’s death becomes unimportant, since it does not furnish any reason why the amount awarded as her alimony —that is to say, alimony awarded for her own use — should be reduced. In passing, we observe, further, that it is by no means certain that the provisions as to alteration and revision of alimony apply to a case iu which alimony is awarded, as in this instance, in a gross sum. In Illinois it has been held that a similar authority is to be exercised only with reference to what is styled “stipendiary alimony,” by which we understand alimony payable in the manner of an annuity. Plaster v. Plaster, 47 Ill. 290.
This brings us to the other branch of the case, viz., that Avhich respects the mortgage. As to this, Ave are of opinion that defendant cannot obtain the relief which he seeks in the present form of proceeding. If, as is claimed, the mortgage was obtained wrongfully and by duress, there is no reason why defendant cannot obtain proper redress in a regular action brought for that purpose; but a right of property, like that involved in the controversy respecting the mortgage, cannot properly be determined upon a motion like that made in this case, to be heard upon affidavits.
Order affirmed.