220 P. 88 | Mont. | 1923
delivered the opinion of the court.
On or about the tenth day of September, 1923, Violet La Point, as plaintiff, commenced an action in the district court
On the filing of the complaint, Honorable Joseph R. Jackson, the district judge in whose court said action was pending, issued an order requiring the defendant to show cause why he should not be compelled to pay alimony pendente lite, together with attorney’s fees and court costs. On the return day of the order the defendant appeared and filed a motion to dismiss the same on the ground that the complaint did not state facts sufficient to constitute a cause of action, which motion was subsequently overruled by the court, and the order to show cause was heard upon its merits. At the conclusion of the hearing an order was made requiring the defendant to pay to the plaintiff as alimony during the pendency of the action the ■ sum of $40 per month, and also an attorney fee of $50. Subsequent to the making of this order the defendant in the action filed his petition in this court asking for a writ of prohibition directing the above-named district court and the judge thereof to annul, vacate and set aside the or
Under the arguments and briefs of counsel, the sole ques- tion presented for decision is whether, under the laws of this state, a wife can maintain an action for separate maintenance on the ground of willful neglect independent of an action for divorce.
Counsel for relator contends that this cannot be done, and his argument runs along this line: He cites section 5736, Revised Codes of 1921, which provides that absolute divorces, separations from bed and board, or decrees of separate maintenance may be granted for the causes therein enumerated, amongst them (3) willful desertion and (4) willful neglect; also section 5747, which declares that willful desertion or willful neglect must continue for the space of one year before there is ground for divorce; and section 5769, providing that while an action for divorce is pending the court or judge may require the husband to pay as alimony any money necessary to enable the wife to support herself and children, or to prosecute or defend the action, and “when the husband willfully deserts the wife, she may, without applying for a divorce maintain in the district court an action against him for permanent support and maintenance of herself and children,” and the court may “during the pendency of such action * * * require the husband to pay as alimony” the necessary funds to enable her to prosecute “the action and for support and maintenance.”
If the power of the court to entertain an action for separate maintenance is limited by these provisions, relator’s contention might have merit. In Edgerton v. Edgerton, 12 Mont. 122, 33 Am. St. Rep. 557, 16 L. R. A. 94, 29 Pac. 966, this court decided in 1892 that the district court in the exercise if its equity jurisdiction had authority to grant separate maintenance to a wife, independently of an action for divorce, when it was shown that the husband had abandoned her without cause, or by his cruelty or other improper conduct had given her °cause for living separate and apart from him.
In State ex rel. Wooten v. District Court, 57 Mont. 517, 9 A. L. R. 1212, 189 Pac. 236, it was held that the defendant wife in an action brought by her husband for the annulment of the marriage was entitled to alimony, suit money and attorney’s fees, pendente Ute, although the statute giving the court jurisdiction to entertain such an action made no provi
Counsel for relator does not question the doctrine of the cases of Edgerton v. Edgerton and State ex rel. Wooten v. District Court, supra, but claims they have no application to this case because of an implied limitation which he argues is contained in section 5769, supra; that is, he seeks to apply the'rule comprehended in the maxim that the expression of one thing is the exclusion of others. It therefore becomes necessary to inquire into the results which flow from the en- actment of this statute, which at most is a mere declaration of the common-law rule that had existed long prior to its passage and was not therefore a new enactment of law.
Section 10704, Revised Codes of 1921, is as follows: “The provisions of this Code, so far as they are substantially the same as existing statutes or the common law, must be construed as continuations thereof, and not as new enactments.” Referring to just what is meant by the “common law,” in Ætna Accident & Liability Co. v. Miller, 54 Mont. 377, 382, L. R. A. 1918C, 954, 170 Pac. 760, Mr. Justice Sanner said: “Broadly speaking, it means, of course, the common law of England; but it means that body of jurisprudence as applied and modified by the courts of this country up to the time it became a rule of decision in this commonwealth.”
Section 10703', Revised Codes of 1921, is as follows: “In this state there is no common law in any ease where the law is declared by the Code or the statute; but where not so declared, if the same is applicable and of a general nature, and not in conflict with the Code or other statutes, the common law shall be the law and rule of decision.”
Sections 10704 and 10703, above, were enacted as sections 3454 and 3452, respectively, of the Code of Civil Procedure of
Our Code further recognizes the continuance of the common law, and that the codification does not embrace the whole body of the law in section 10545, Revised Codes of 1921, where it is said, “Laws whether organic or ordinary are either written or unwritten,” and in section 10549, Id., which is as follows: “Unwritten law is the law not promulgated and recorded, * # * bu-t jS; nevertheless, observed and administered in the courts of the country. It has no certain repository, but is collected from the reports of the decisions of the courts and treatises of learned men.”
It will be observed that the provisions of section 5769, supra, under consideration, are affirmative in character, and contain no negative expressions. “It has been said that statutes are not presumed to make any alterations in the common law further than is expressly declared, and that a statute made in the affirmative without any negative expressed or implied does not take away the common law.” (25 R. C. L. 1954, sec. 180.)
The rules of the common law are not to be overturned except by clear and unambiguous language. (Ryalls v. Mcchanics’ Mills, 150 Mass. 190, 5 L. R. A. 667, 22 N. E. 766.) In Endlich on Interpretation of Statutes, 127, the rule is thus stated: “The principle is recognized that an intent to alter the common law beyond the evident purpose of the Act is not to be presumed. It has been expressly laid down that ‘statutes are not presumed to make any alteration in the com
The case of Yazoo & Mississippi Valley Rd. Co. v. Scott, 108 Miss. 871, Ann. Cas. 1917E, 880, L. R. A. 1915E, 239, 67 South. 491, arose out of an action for personal injuries. Upon the first trial in the lower court Scott prevailed and was awarded $100 damages. On appeal he obtained a reversal for the reason that thé damages awarded were inadequate. Jn reversing the judgment however, the new trial directed was restricted to the ascertainment of damages only, and in so far as it settled the question of liability the judgment was permitted to remain in full force and effect. A second trial resulted in a verdict in favor of Scott for $6,750. The railroad company took an appeal and contended that the supreme court was without power to direct that the case should be tried on the question of damages only, and therefore the trial court had erred in restricting the trial to that issue. One of the propositions raised by the appellant was that since the Code had given the supreme court authority in some instances to reverse a case partially, and the right to grant a retrial on the issue of damages only was not among those enumerated, it was excluded by implication. In rejecting this contention, after pointing out that at common law an appellate court had the inherent power to award a new trial on the issue of damages only, the court said: “In arriving at our conclusion in this matter we have not left out of view the suggestion of counsel for appellant that under the rule of ‘ expressio imius est exclusio alterius’ the grant of power to this court to reverse partially contained in sections * * * of the Code, impliedly prohibits it from so doing in cases not coming within the provisions of these sec
It is our conclusion that under the foregoing rules of construction, the district court sitting in equity is not divested of jurisdiction to grant a' decree of separate maintenance independent of an action for divorce, by the exception contained in section 5769, swpra,.
The contention of counsel for the relator seems to be negatived by section 5768, Revised Codes of 1921, which provides: “Though judgment of divorce is denied, the court may, in its discretion, in an action for divorce, provide for the maintenance of the wife and her children, or any of them, by the husband.” Assume that the wife commenced an action for divorce on the ground of willful neglect and in her complaint by mistake or otherwise alleged that the same has continued for a period of more than one year, but on the trial it developed that it had continued for only a period of nine months, or for any period of time less than one year, and for that reason alone the court denied a judgment for divorce, still under the above section the court in its discretion could award maintenance and support to the wife and children. It is not reasonable to assume that it was the intent of the legislature to authorize the court .to award maintenance and support to the wife where she has come into court with an allegation which, so far as the statutory
Section 5784, Revised Codes of 1921, malíes it the duty of the husband to support his wife out of his property or labor, and by the provisions of section 5800, if he neglects to do so (unless the wife has abandoned him without justification), any person may in good faith supply her with articles necessary for her support and recover value therefor from him.
Considering the fact that under the common law as it existed in this jurisdiction when our Codes were adopted, it was recognized that a court of equity had inherent authority to grant a wife separate maintenance independent of an action for divorce, and that no statute has been enacted, to take away this right; that the right to grant maintenance without a decree of divorce is recognized by section 5768,' supra, and that the statute expressly imposes upon a husband the duty to support his wife, we conclude that the court is possessed of power to grant a decree for separate maintenance, together with alimony, attorney’s fees, and suit money, during the pendency of an action instituted for that purpose, irrespective of any statute granting the same, and without the necessity of joining therewith an application for divorce, or stating facts which would entitle her to maintain such an action.
Such being the law, it follows that the motion to quash the alternative writ issued in this proceeding should be sustained, and it is so ordered.
In view of the decisions of this court and the statutes cited by Mr. Justice Stark, I believe the conclusion reached in this cause is justified, but I do not agree with all that is said in the foregoing opinion.