36 Iowa 319 | Iowa | 1873
— I. An action for alimony cannot be maintained as an independent proceeding after a divorce of the parties. Tbe relation of husband and wife must exist to justify a judgment for an allowance of tbis character to tbe wife. Blythe v. Blythe, 25 Iowa, 266.
II. But regarding tbe case as presented by tbis amended petition as a proceeding supplementary to tbe action for divorce for tbe purpose of modifying tbe decree therein rendered, affecting tbe property of defendant, that pleading is defective and tbe demurrer was properly sustained.
Revisión, section 2537 is in these words: “ When a divorce is decreed tbe court may make such order in relation to tbe children and property of tbe parties and tbe maintenance of tbe wife as shall be right and proper. Subsequent changes may be made by tbe court in these respects, when circumstances render them expedient.”
In Blythe v. Blythe, supra, which was a proceeding to modify a' decree for a divorce so as to allow tbe wife alimony where no provision bad been made for her by tbe decree, tbis court uses tbe following language: “Although tbe court granting tbe divorce has, by force of our statute (Rev., § 253), power to make changes in tbe decree in respect to property and children, yet tbis power certainly ought not to be exercised only upon such change of circumstances as demand tbe change in tbe decree. That is to say, tbe original decree is conclusive upon the parties as to their then circumstances; and tbe power to make changes in tbe decree is not a power to grant a new trial to retry tbe same case, but only to adopt tbe decree to tbe new or changed circumstances of tbe parties.” Neither tbe amended or original petition shows change in tbe circumstances of tbe parties as to property. It is on tbe other band alleged that defendant did own tbe identical property which is sought to be charged with plaintiff’s claim for alimony, at tbe time of tbe decree. Not a word is said
Affirmed.