189 P. 233 | Mont. | 1920
delivered the opinion of the court.
Relator brought action in the district court of Silver Bow county for the annulment of his marriage under section 3636, Revised Codes, on the grounds that: (a) His consent was obtained by the fraud of the defendant; and (b) that the defendant was physically incapable of entering into the marriage relation. Having denied generally the allegations of fraud and incapacity, the defendant applied for and was allowed alimony pendente Ute, attorney’s fees and suit money, and from the order relator appealed; whereupon defendant made application for and was allowed further alimony, suit money, and attorney’s fees, over the objection of relator, to enable her to defend against the appeal. Relator then instituted this proceeding for a writ of prohibition against the enforcement of the order last mentioned, and the making of any further orders of a similar character. Respondents moved to quash on the ground that the relator is not entitled to the relief demanded, for the reason that his petition does not state facts sufficient to warrant this court in granting him such relief and that he has a plain, speedy and adequate remedy at law, citing section 7228, Revised Codes: State ex rel. Browne v. Booher, 43 Mont. 569, 118 Pac. 271, State ex rel. Topley v. District Court, 54 Mont. 461, 171 Pac. 273, and Poupart v. District Court, 34 Nev. 336, 123 Pac. 769.
While an appeal lies from an order allowing alimony (State
In the case of State ex rel. Scharnikow v. Hogan, 24 Mont. 379, 51 L. R. A. 958, 62 Pac. 493, this court held that, under Article YIII, section 3, of the Constitution, the foregoing section could not confer on the supreme court the power to issue the writ of prohibition to arrest proceedings not of a judicial nature; but this ruling does not affect the question before us, as we are here dealing with a judicial function.
Under section 7228, the writ may be issued “in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law.” (State ex rel. Lane v. District Court, 51 Mont. 503, L. R. A. 1916E, 1079, 154 Pac. 200.) If, then, under the
The complaint alleges that the plaintiff and defendant intermarried in June of 1919, and “ever since have been and are now husband and wife,” and then alleges fraud on the part of the defendant, and that at the time of the marriage she was afflicted with a contagious and infectious disease of a deadly character, which appears to be incurable; that the plaintiff was induced to enter into marriage relation by false representations; and that, if it had not been for such false representations and concealment practiced upon him, he would never have consented to such marriage. He further avers that, as soon as he discovered the true conditions, he left the defendant and has not since cohabited with her. All these allegations are de
The defendant was placed on the stand and established the fact of the marriage, and, on cross-examination, admitted that, just prior to the time plaintiff left her, she was advised by a physician that she was afflicted as charged, and that she told her husband what the doctor had said. A card or chart from the State Department of Health, showing the result of a “Wasserman test” as “4 plus,” which indicates, according to the chart, “very strongly positive,” or the highest reaction for syphilitic infection, was admitted in evidence, and defendant admitted that she was shown the card just prior to the time her husband left her. She further admitted that, if she was so infected, the infection dated from the time of cohabitation with her former husband and antedated her marriage to plaintiff. She testified further, however, that she had never shown external evidence of such infection, and that she was twice thereafter examined by other physicians who also had such a test made, and that the result of such test was negative. There was no attempt made on the' part of the plaintiff to establish fraud or misrepresentations prior to her marriage, or that, if infected, defendant knew of her condition prior thereto; on the contrary, the defendant testified that she was in good health and sound bodily condition at that time. She further testified that she was five months along with child and that she is without means of support or for the defense of the action.
It is contended that the court is without jurisdiction to grant temporary alimony, suit money or counsel fees in an action to annul a marriage, for the following reasons: (1) The statutes of the state confer no authority upon the court to grant the same in such an action. (2) The provisions of the statutes are exclusive and are the measure of the court’s authority in matrimonial actions.
1. Taking up" the reasons assigned in the order stated, we will first consider the history of this legislation in Montana.
Although it thus appears that up to 1895 the successive legislative assemblies of this state did not recognize the fact, there is a clear distinction between actions for the annulment of a marriage on pre-existing grounds and those for the dissolution of such a contract for acts committed after its solemnization. The first recognizes but a ceremonial or formal contract and repudiates the idea that there ever was in fact a marriage between the parties, and the decree of the court, when made, declares the marriage null and void ab initio; while the latter recognizes the validity of the marriage and seeks a decree dissolving the bonds because of the wrongful act of one of the parties during the existence of the marriage relation. “While a suit for nullity follows substantially the same rules as a suit for divorce, yet it cuts deeper into the soil of consequences than the divorce suit, because the interests and rights of third persons are more affected by it. The children especially have their
In codifying the laws of the state in 1895, the legislature recognized the error made theretofore and separated the two classes of causes of action. (Codes 1895, secs. 110-203, inclusive.) These sections are found in Chapter 2 of Title I of the Civil Code. The Chapter is entitled “Divorce” and is subdivided as follows: Article I: Nullity. Article II: Dissolution of Marriage. Article III: Causes for Denying Divorce. Article IV: General Provisions. This Chapter was carried forward to the Revised Codes of 1907, with but one minor amendment, and the only changes made therein are that the title to Article I now reads “Annulment of Marriage,” instead of “Nullity,” and the sections are given different numbers in accordance with the new arrangement of the Codes. (Secs. 3636-3689, Rev. Codes.) Section 3677 (191) of Article IV of the Chapter provides: “While an action for divorce is pending the court or judge may, in its or his discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action.” It also provides for actions for support and maintenance, and that “during the pendency of such action the court, or judge, may, in its or his discretion, require the husband to pay as alimony any money necessary for the prosecution of the action and for support and maintenance,” etc. It will be noted that the foregoing provisions — and they are the only provisions in the Codes on the subject of alimony — make no reference to actions for the annulment of a marriage.
While it is true that, from 1865 to 1895, the laws of this state specifically empowered the court to grant temporary alimony in this class of cases, as well as actions for divorce, by including both classes of actions in one section, as we have heretofore seen, on the adoption of the Codes with its new classifi
It is therefore evident that whatever statutory authority the court now has in awarding alimony must be found in said section 3677, Revised Codes.
■ It is urged by respondents’ counsel that, as said section is found in “General Provisions” at the end of Chapter 2 of the •Civil Code, which Chapter is entitled “Divorce,” and Article I, •on “Nullity” or “Annulment of Marriage,” being a part of that Chapter, it was intended that such general provisions 'should apply generally to all actions provided for in the Chapter. The Chapter was, undoubtedly, taken bodily from the California Code, including its arrangement and titles, and, while ordinarily the arrangement and titles in the Codes are .given no weight in construing statutes, for the reason that they are usually the work of codifiers rather than that of the legislative assembly, the fact that the Chapter was so adopted by ••the legislative body itself might have some persuasive force, were it not for the provisions of section 3562 of our Codes, which reads as follows: “(3) The arrangement and classification of the several parts of said Codes have been made for the purpose of convenience and orderly arrangement, and therefore no implication or presumption of a legislative construction is
It would therefore seem that no presumption in favor of the court’s authority can arise from the fact that this proceeding was brought under Article I of the Chapter entitled “Divorce”; the Article might be taken from the Chapter and placed in any other part of the Code “for the purpose of convenience and orderly arrangement,” and would then have not the remotest connection with those sections contained in the' article on “General Provisions.”
Section 3677 authorizes the court to grant temporary alimony in but two classes of cases, to-wit: “While an action for
2. Are the statutory provisions the exclusive measure of the' court’s jurisdiction in cases involving the marital relation?
The overwhelming weight of authority answers the question in the negative and holds that the right to award alimony in matrimonial cases is a part of the fundamental jurisdiction of courts of equity in all eases where authority is granted to the courts to hear and determine such causes, and this court has, to some extent at least, recognized such a rule. Thus, in the case of Edgerton v. Edgerton, 12 Mont. 122, 33 Am. St. Rep. 557, 16 L. R. A. 94, 29 Pac. 966, decided in 1893 and prior to the enactment of the statute permitting the court to award' alimony, etc., in separate maintenance actions, apart from divorce, and before, by statute, such an action was maintainable, this court held that “An action of this character if maintainable-at all, would naturally lie within the equitable jurisdiction of the district court.” After quoting the statutes heretofore-cited, the court said: “It is contended that these provisions of the statute as to the decree for alimony and maintenance ‘when divorce is granted,’ by implication, exclude from-
In the case of Finkelstein v. Finkelstein, 14 Mont. 1, 34 Pac. 1090, the court recognized the distinction between an action for divorce and annulment, and, although the statute then per
In the case of Twell v. Twell, 6 Mont. 19, 9 Pac. 537, this •court held that proceedings for divorce and alimony are of chancery jurisdiction and that the power to decree alimony falls within the general powers of a court of equity.
In the case of Galland v. Galland, 38 Cal. 265, the supreme court of California said: “There is no provision of the statute
As we have heretofore stated, Chapter 2 of the Code of 1895 is identical with the laws of California on the subject, and, under such identical provisions, the court there held that, in an action by the husband to annul the marriage on the ground of fraud, the superior court had authority to award the defendant such an amount as was necessary to enable her to .present her defense; the court saying: “Until her alleged fraud is established, she remains the lawful wife of the petitioner, and has the same right to defend the action to annul the marriage that he has to prosecute it, and until she is provided with the means * * * to make her defense, she ought not to be forced into a trial.” (Allen v. Superior Court, 133 Cal. 504, 65 Pac. 977.) And later, in construing these provisions, in a case on all-fours with this, that court said: “For all the purposes of the annulment action, so long as the action is pending, to use the language of Brinkley v. Brinkley, 50 N. Y. 186, 10 Am. Rep. 460, ‘the relation actually exists upon which the right to alimony depends. ’ So that, even if section 137 of the Civil Code, providing for alimony and cost money in an ‘action for
The New York court of appeals, in the case of Higgins v. Sharp, 164 N. Y. 8, 58 N. E. 10, laid down the rule that “the general jurisdiction conferred by the statute to entertain such actions carries with it, by implication, every incidental power necessary for its proper exercise. * * * The power' to allow alimony and counsel fees to the wife in order to enable her to live pending the action, and to present her defense, if she has one, must be regarded as incidental and necessary in all matrimonial actions. Without such power the rights of the woman, in many eases, could not be adequately protected. It seems to us, therefore, that actions to annul a marriage are
While there are cases — some of them well reasoned and logical — to the contrary, all the modern writers on the subject agree that, where there has been a marriage ceremony performed the validity of which is denied by the husband and asserted by the wife, the latter is entitled to alimony pendente lite, suit money and attorney’s fees; for the validity of the marriage is the subject in controversy, and the court cannot decide the merits of such a controversy on such preliminary application, with the exception that, where, on the preliminary hearing, if it clearly appears that there was no marriage and that the wife cannot prevail in the action, the court will refuse to grant the application. Thus, in 29 Cyc. 918, the rule is laid down as follows:
“On the other hand, where the husband brings the suit and. the wife defends, asserting the validity of the marriage, she is in a position to claim alimony pendente lite and an allowance for the expenses of the suit and for counsel fees, and it will be granted to her on a proper showing (citing eases). But, of course, it is otherwise if the wife as defendant admits that the marriage was null and void. Permanent alimony cannot be granted in cases of this kind for, if a decree is granted in accordance with-the prayer of the petition, it must adjudge the pretended marriage void ab initio, and consequently that the parties never sustained the relation of husband and wife.”
“Where an actual marriage is shown, and its existence in law is sought to be avoided by some fact set up by the husband, unless he proves that fact, the alleged wife is entitled to temporary alimony. Where the husband denies in his answer that a valid marriage ever-existed, the court still has jurisdiction to allow temporary alimony, but it will not be allowed until some evidence of a valid marriage is shown.” (19 C. J. 213, 214, and cases cited.)
And in 1 Am. & Eng. Ency. of Law, page 472, we find the statement: “As regards the marriage which must exist to entitle the wife to a decree for temporary alimony — as the merits are not gone into, the court will be justified in granting the decree if the parties had lived together and adjusted their
Under the heading “Annulment Suit by Husband,” the author, in 1 E. C. L. 905, declares.: “An action to annul a marriage brought by the husband stands on an entirely different footing from such an action brought by the wife, so far as the right to alimony pendente lite is concerned. When she is in the position of asserting and defending the validity of her marriage, she may consistently invoke the power of the court to compel a provision for her maintenance until the action has determined the relation of the parties. Her marriage to the plaintiff is presumed to be legal until the contrary is shown, and there is no sound reason in law or in morals why a wife who has had a serious charge made against her should not have the same right of assistance from her husband in defending against his charge that she would have were he asking a divorce (citing cases).”
“The authorities, therefore, almost unanimously hold, even in the absence of express statutory authorization, that where a husband seeks an annulment of the marriage on grounds the existence of which is denied by the wife under oath, she is entitled to an allowance during the pendency of the suit. The fact that the husband thereby admits the existence of the marriage relation de facto, taken with the wife’s denial of its invalidity, is sufficient to sustain the application, for, as has been shown, the court will not go into the merits of the action at that stage. The question should be governed by the circumstances of the case and rests in the sound discretion of the court, and will not be disturbed on appeal unless that discretion has been abused.” (19 C. J. 228.)
On the question as to whether the court has authority to make an award in the absence of statutory provision therefor, Mr. Bishop has this to say: “Let us consider the question sometimes arising in our courts, whether, when a statute gives the tribunal jurisdiction over a specific cause of divorce, but is
Here the plaintiff himself sets up the marriage and alleges that “ever since said date plaintiff and defendant have been and are now husband and wife.” He then alleges facts which, if true, would render the marriage null and void. The evidence heretofore set out, taken before the district court on the hearing, did not establish the truth of such allegations conclusiyely, and the court, in the exercise of its discretion, allowed the application of the wife. The testimony so taken
It is true that, if, on a final hearing, the court finds that the allegations are true, the defendant will not be entitled to alimony, for it will then appear that she never was the wife of the plaintiff, and consequently he was never under legal obligation to her. But on the other hand, if the plaintiff fails in his proof, the defendant will be declared to be his lawful wife, and consequently to have been entitled to support from him from the beginning of the action, yet if she, without means as she has testified, be denied the order prayed for, how is she to combat this most grave charge against her, and who is to support her while the court awaits the final presentation of the case? Until she is adjudged not to be the wife of the plaintiff, he is bound to support her, and, having deserted her, she might, under the statute, bring an action for separate maintenance and in that connection apply for and receive alimony. Why, then, should not a court of equity decree her such alimony pending this action, rather than to force her to a multiplicity of suits? She is presumed to be innocent, as quoted from Sir George Lee, above, until she is proved guilty, and, until such presumption is overcome by competent evidence, she is, as to all the world, the lawful wife of plaintiff and entitled not only to support but to the means necessary to properly meet a charge which will, if proven, deprive her not only of her position as wife, but to a great extent destroy her reputation as a woman, and it would seem that the reasons for awarding a woman, under such circumstances, the means to defend, are more cogent than in the ordinary case of divorce and appeal more strongly to justice and equity.
The motion to quash the alternative writ will therefore be sustained and the application dismissed. It is so ordered.
Dismissed.