« ForrigeFortsett »
Harrison, J., delivered the opinion of the tion, etc. And it is of the statements that apcourt:
pellee purchased a certain tract of 40 acres of This action was instituted in the district land in York county, and near York, and also court of York county by the appellee against a lot in York, upon which he claims to have the appellant; the objects sought being to ob- erected a store building; that this property betain a divorce from her, and other relief in longed to appellee, but had been placed in the regard to certain property rights. Appellant's name of Robert Blair, contrary to the wishes, desertion of him was alleged by appellee as and against or in fraud of the rights, of apthe ground for the claim of divorce. It was pellee; that Robert Blair, deceased at the time pleaded in the petition that the parties were of this action, made a will in wbich he devised married at Johnsonburg, New Jersey, Oc. the aforementioned land and lot to his three tober 13, 1869, and that on or about No daughters,—the undivided one-half interest vember 1, 1888, the appellant deserted appel. therein to appellant, and the undivided onelee, and for more than two years had been half to the other two. It is pleaded in the wilfully absent from bim, without just cause answer and shown by the evidence that the or reason. The petition also contained a two sisters of appellant afterwards conveyed somewhat extended account of the beginning to her the title which they acquired to the and course of their married life, and more par. aforesaid property. It was further set forth ticularly the business and financial transac. in the petition that there were four children, tions engaged in by the appellee, and reverses issue of the marriage, with the care, custody, i herein, and the consequent changes in local and education of whom, it was alleged, the
had failed to do, a decree in conformity with the In Ex parte Spencer, 83 Cal. 460, it was said tbat it petition was reversed, as he could not claim that is true that "alimony" in its strict technical sense the consideration had failed, because the promise proceeds only from husband to wife. of the wife was no legal obligation, and Ky. Rev. Stat. chap. 47, 86, providing for the restoration of
II. Statutes. property on a decree from the bonds of matri- The following additional statutes give to the mony, did not apply to a decree of divorce from husband certain rigbts in the wife's property, and bed and board. A decree was made giving her a some of them allow him alimony and maintenance. divorce from bed and board and that she should New Hampshire Pub. Stat. 1891, chap. 175, $ 17, be protected in the use of the property. Orr v. provides that upon a decree of nullity or divorce Orr, 8 Bush, 156.
the court m decree that the husband shall have Kentucky Code, $ 425, providing that every judg- a part of the estate of the wife in the nature of aliment of divorce shall contain an order of restoration mony, as justice may require. of property, obtained by one party from or through Batt. (N. C.) Rev.chap. 37, 89, provides that on a the other, in consideration of and during marriage, divorce from bed and board the court may decree did not authorize the enforcement of an order of to the party on wbose application it was granted restoration to the busband, where the decree for alimony not to exceed one third of the pet annual the restoration was made after an order was 'en- income of the other party. Section 14 provides tered discontinuing his claim to the property in that on a divorce for adultery or impotency the the divorce suit. Bennett v. Bennett, 95 Ky. 545. guilty party shall lose all right to curtesy or dower,
And a wife was allowed a recovery of her land or to share in the personal property of the other. which the husband bad sold after he had obtained Section 16 provides that a wife eloping with an a divorce from ber. It was held that his title re- adulterer shall forfeit all right to property of her sulting from the marriage ceased with the legal husband settled upon her on the sole consideration dissolution of that union, the same as though he of marriage, before or after marriage, if the buswas dead. Hays v. Sanderson, 7 Bush, 489.
band shall have commenced an action for divorce So, where a wife obtained a divorce a mensa et during his lifetime. thoro, and the husband denied her right to recover Rhode Island Pub. Stat. 1882, chap. 167, $ 12, proand enjoy possession of her land, except on condi- | vides that in a case of divorce the court may astion that she return, she was entitled to recover sign to the petitioner a separate maintenance of from him the possession and use of her land, Tay. the estate or property of the husband or wife, as lor v. Taylor, 112 N. C. 134.
may be necessary or proper. Massachusetts Gen. Stat. chap. 104, $ 44, author- Rhode Island Pub. Stat. 1882, chap. 167, $ 4, proizing the court to grant a sbare of the wife's estate vides that on a divorce for affinity, consanguinity, in the nature of alimony to the husband, only ap- impotency, idiocy, lunacy, or crime, the wife shall plies to a decree of divorce from the bond of mat- have restored to her all her lands, tenements, and rimony absolutely and finally severing the mar- hereditaments, and may have restoration of her riage tie, and does not apply to a divorce nisi in his personal property. Section 5 provides that on a favor. Garnett v. Garnett, 114 Mass. 347.
divorce for adultery by the wife, the husband shall In Higbley v. Allen, 3 Mo. App. 521, it was said hold her personal property forever, and ber real that the court in its decree could not give to the estate pot secured to her by law during his natural husband any portion of the property of the wife. life, if issue is born alive of her body during mar
In Abel v. Abel, 89 Iowa, 300, it was held that riage, otherwise during her natural life only, if he "the answer of the defendant asks, in case of a de- survives her. cree of divorce, that a part of the property be Vermont Gen. Stat. 1870, chap. 70, $ 36, provides granted to him. The district court correctly denied that on a divorce for adultery by the wife, the such relief. It is not a case where the party in husband shall hold her personal estate forever, and fault is entitled to alimony." This was because the he sball hold her real estate so long as tbey both merits of the case did not justify such a decree, as shall live, and shall have tenancy by curtesy if he the Iowa Code authorizes alimony to the husband. survives her. See Small v. Small, 42 Iowa, 111.
Tennessee Code, s 3329, provides that when a marA decree of divorce giving the wife all the hus- riage is dissolved at the suit of the husband, and band's property, and “directing her to pay his the defendant is the owner in her own right of debts," was unwarranted. There was no precedent lands, his rights to the rents and profits of the same for such a decree. Ross v. Ross, 78 III. 402.
shall not be impaired by the dissolution. And he
appellant was wholly unqualified to be trusted; the title was taken in the name of her fatber; that by the will of appellant's father the sum that after his death it was discovered that in of $125,000 was bequeathed in such manner bis will she had been given the one half interest tbat she was entitled to receive the income in them, and her two sisters one-balf interest; therefrom, amounting to $6,000 per annum; that the two sisters afterwards conveyed to her that appellant “is the owner of a large amount all title or interest they had in the properties in of property, as bereinbefore alleged, and the York county. And the answer continued: plaintiff is possessed of but little means and * Thal prior to the beginning of this action bas but little appual income, and he is unable
the said plaintiff, by a certain indento perform manual labor, as he is afflicted ture, duly executed, signed, witnessed, acwith what is commonly known as hip-joint knowledged, and delivered with and to one disease,' and is unable to support himself by Thomas Kays as the trustee and agent of this reason thereof, and the defendant absolutely defendant, for a good and valuable considerarefuses to corvey that which is justly due him, tion, released, relinquished, and conveyed to and or to contribute anything to his support.” for the use of this defendant all his claim, right, The prayer of the petition was as follows: title, or interest, or pretended claim, right, title, “The plaintiff therefore prays that he may be or interest, in or to several tracts of land, and divorced from the defendant, and that he may every of them, and thereby, upon considerabe given the custody of the said minor tion as aforesaid, expressly admitted and acchildren, and that the defendant be decreed to knowledged that this defendant was the true pay bim reasonable alimony, and to convey to and only owner of all the same, as her own bim each and every part of the lands herein- separate estate and property, free from all inbefore described, and for such other and terest, title, or control of said plaintiff, whereby further relief as equity may require.” In her this defendant avers that this plaintiff is esanswer the appellant set forth the purchase of topped to assert or maintain that he bas, or has the properties in and near York as having been had since the 24th day of July, 1883, any right, made with money furnished by her father; title, claim, lien, or interest in or to said lands, that they were so purchased for her, but that'or any of them. All of which matters were
shall also be entitled to her personal estate in pos- | property, and also fix the status of the wife's propsession or in action. Section 3331 provides that on erty, thus impliedly denying that any claim may divorce for adultery of the wife she cannot alienate be made by the husband against the wife's estate. any of her lands, and at her death they shall be dis- Starr & C. Illinois Statutes, chap. 40, $ 17, provides tributed as though she bad died intestate.
that when a decree of divorce is granted, and it New York Rev. Stat. (1896, Birdseye) p. 893, $ 18, shall appear that either party holds the title to subs. 3, provides that where an action for divorce property equitably belonging to the other, the is brought by the wife, and the plaintiff is the owner court may compel conveyance thereof to be made of any real or personal property, or has in her pos- to the party entitled to the same. session any personal property left with her by the Arkansas Dig. Rev. Stat. 1884, 8 2568, provides tbat defendant or acquired by her own industry, or in every final judgment for divorce from the bond given to her, or if she may become entitled to any of matrimony an order shall be made that each property by the decease of a relative intestate, the party be restored to all property not disposed of at defendant shall not have any interest therein. the commencement of the action, which the other Section 19, subs. 2, provides that when an action is party obtained from or through the other during brought by the husband the judgment dissolving the marriage and in consideration or reason the marriage does not affect the plaintiff's interest thereof. in and to any real or personal property which the Maine Rev. Stat. 1883, chap. 60, $ 9, provides that defendant owns or possesses when the judgment is when a divorce is decreed for impotence, or is derendered.
creed to the wife for the fault of the husband, the Maine Rer. Stat. 1883, chap. 60. 8 10, provides that wife's real estate sball be restored to her, and the when à divorce is decreed to the husband for adul- court may enter judgment for her for so much of tery of the wife, he may bold her personal estate her personal property as came to her husband by of which she was seised during marriage, during marriage, as is reasonable. his life, if they had children born alive during mar- Maryland Pub. Laws, art. 16, 8 37, provides that riage, otherwise during her life only if be survives in all cases where a divorce is decreed, the court her; but the court may make an allowance out of shall have full power to award to the wife such her property as is necessary for her subsistence. property or estate as she had when married, or the This does not apply to the wife's property held value of the same, or of such as may have been under chap. 61, wbich chapter provides for the sold or converted by the husband, baving regard rights of married women to obtain, acquire, and to the circumstances of the busband. dispose of property in their own name.
Howell's Mich. Stat. 1882, 8 6240, provides that on Sayles's Tex. Civ. Stat. art. 2864, provides that on a a divorce from the bonds of matrimony, except decree of divorce the court shall order a division of that of adultery by the wife, and when the husband the estate of the parties as shall seem just, but shall be sentenced to imprisonment for life, and on nothing herein contained sball be construed to a decree from bed and board, the wife shall be encompel either party “to devest him or her self of titled to the immediate possession of all her real the title to real estate.”'/
estate, as if her husband were dead. Section 1287 Arizona Rev. Stat. $ 2114, provides that the court provides that upon a divorce from bed and board in a decree of divorce from the bonds of matri- the wife shall have the same rights in respect to ber mony, shall order a division of the estate of the real and personal property as an unmarried parties in such a way as to the court shall seem woman. just and right, having due regard to the rights of Minnesota Stat. 1894 provides whenever a decree each party and their children, if any, provided, how- is made of a nullity of marriage or a divorce from ever, that nothing herein contained shall be con- the bond of matrimony, for any cause except adulstrued to compel either party to devest him or her-tery by the wife, and when the husband is senselt of the title to separate property.
tenced to imprisonment for life, and upon erery The following statutes provide for restoration of divorce from bed and board, the wife shall be enand are at issue between these same parties in ownership and title of the real estate drawn an action pending in the district court of York into controversy, and that the cause of action county, Nebraska, between the same parties in that case was the same as in the case at bar. as in this action, which other action was pend. To this supplemental pleading the appellee reing at the time this action was commenced, plied, admitting the other action, and that it and has ever since been and is now so pending, had run its course to judgment, but alleged as herein before set forth.” One portion of the that the sole issue in that case was whether a answer was in the pature of a cross-petition, contract upon which it was predicated had and contained, among others, allegations of ap- been made by appellant under duress. This pellee's cruelty toward appellant and his fam- reply was further a general denial of the alle. ily, and his unfitness to have the custody and gations of the supplemental answer, except control of the children. Appellant asked that such as were specifically admitted. Of the is. she be granted a divorce, that she be awarded sues joined there was a trial. Appellant was the custody of the ehildren, and that the title granted a divorce and the custody of the to the properties in controversy be quieted and children. There were further findings and confirmed in ber, and some other relief, wbich decree as follows: “The court further finds need not be particularly noticed. To this an- that the plaiutiff bas an equitable interest in swer and cross-petition the appellee filed a de- the following described real estate, which real nial of each and every allegation of new mat. estate appears on the records as the property ter therein contained. The appellant filed a of the defendant, to wit, has an interest in supplemental answer, in which it was pleaded lot 11, block 58, in the city of York, York that of the action to which reference was made county, Nebraska, according to the original in the former answer as pending in the district plat of the town of York, and that said intercourt of York county between the parties here. est is of the value of $1,400. The plaintiff bas to, and in regard to the title of the lands and also an equitable interest in the S. W. of the property herein involved, there had been a S. E. # of Sec. 31, T. 11 N, of R. 2 W., 6th trial, and a judgment therein favorable to ap- P. M., in York county, the title to which also pellant, by which she had been awarded the appears of record in the name of defendant,
titled to the immediate possession of all her real
III. Alimony pendente lite. estate and personal property as if her husband
There are but few decisions directly on the ques. was dead.
tion of alimony pendente lite to the husband, alIndiana Code Civ. Proc. 1043, provides that a di- though in some of the cases supra alimony genervorce decreed on account of the misconduct of the ally was claimed. Under some of the statutes husband shall entitle the wife to the same rights, so far as her real estate is concerned, as she would supra it seems that on a proper showing, alimony
pendente lite would be granted to the husband. In have been entitled to by his death.
an Illinois lower court case, and in an Iowa case, Wyoming Rev. Stat. 1887, 8 1585, provides that on allmony pendente lite was allowed, although there a divorce, except for the wife's adultery, the wife
was no statute to that effect in Illinois, but there shall be entitled to the whole or a reasonable part was in Iowa. of her personal estate that shall have come to the
An order was made directing the wife to pay into husband by marriage, or the value thereof. 1 Mo. Rev. Stat. 1889, $ 4509, provides that when court for the use of the plaintiff, to pay bis attor
ney, $25. This was affirmed although tbe court the wite shall obtain a divorce from the bonds of matrimony all property which came to the hus, in favor of the defendant on her cross-petition,
upon fival hearing found against the plaintiff, and band by means of the marriage, that is undisposed and that she was entitled to a divorce from the of at the time of filing the petition, shall revert to plaintiff. The lower court allowed bim $300, which the wife and children.
included $50 in attorney fees altogether, but this Ohio Rev. Stat. (Giauque), 7th ed. 84 5699, 5700, was set aside on appeal except as to the allowance provide that when a divorce is granted for fault of of $25. Barnes v. Barnes, 59 Iowa, 456. (The Iowa the husband or wife the effect of the judgment Code authorizes such an allowance. See Small v. shall be to restore to ber the whole of ber lands, Small, 42 Iowa, 111.) tenements, or heriditaments not previously dis
In the circuit court of Cook county, Illinois, in posed of. Okla. Code, & 4550, is to the same ef.
the absence of any statute, and admitting there fect.
was no precedent, an allowance of alimony penTaylor's Kan. Stat. $ 4756, provides that on a di- dente lite was made to the husband where he was vorce for fault of the wife the court sball order res
old and a confirmed invalid, unable to support toration to her of the whole of her property owned bimself, and his wife bad an estate from which she by her before marriage, or separately acquired by derived an income, and she had brought suit for a her after marriage, and not previously disposed of; divorce for bis misconduct, the court bolding that and the court may set apart such portion of the since the status of married women has been wife's property as is necessary for the support of changed, the same rule should be applicable to the the children. Section 4757 provides that a divorce wife as to the husband, and both should be placed shall bar the party for whose fault it was granted upon an equality. Groth v. Groth, 28 Chicago Leg. against any claim in or to the property of the other, News, 348. except for fraud. Alabama Civ. Code, $ 2337, provides that a divorce
IV. English cases. deprives the husband of all control over the sepa- Under the various English statutes the court has rate estate of bis wife.
power to alter settlements on granting divorce, Clay's Alabama Dig. 170, $ 8, providing that on a and, where the wife has been guilty of adultery, to decree of divorce the court sball order a division give such part of the wife's income to the husband of the estate of the parties, providing that noth- as the court shall see proper. ing shall be construed to compel either party to de- On a decree nisi dissolving the marriage on acvest him or her self of the title to real estate, evi- count of the wife's adultery, where the wife's indently was repealed, as the same does not appear come was £1,140 a year from property under the in the present Code.
will of her father, and the husband's income was
and that the interest of said plaintiff in said , of the definition denoting a form of alimony premises is of the value of $3,000, and the said known only to the modern law, not to the sum of $1,400 is a valid lien on said lot, and ancient. It may be for the wife's use durthe said sum of $3,000 is a valid lien on said ing the pendency of a suit, called alimony S. W. # of S. E. 1, Sec. 31, T. 11, R. 2 W. pendente lite, after its termination,
It is further ordered and adjudged by known as permanent alimony.” See also the court that the plaintiff have and recover further definition in note 1 on same page. of the defendant, Rachel B. Greene, the sum In $ 469, in the same volume, the auof $4,400, the value of his equitable interest thor observes: “If a husband is obliged to in the property herein before described, and seek divorce from his wife, and the propthat said sum be a lien on said premises in the erty of the two is mainly or entirely vested order named.” From this latter portion of for her separate use, it will, under special the decree this appeal has been prosecuted. circumstances, be impossible to do justice
One of the questions presented is, Cap ali without transferring to him some of this mony be allowed to the husband? “ Ali- property. And perhaps there may be statmony” is defined in $ 351, vol. 2. Bishop, tes in some of our states under which someMar. & Div. 6th ed. as follows: Alimony, thiog approximating this can be done. But it in divorce law, is the allowance which a cannot generally. Nor, where the commonhusband pays, by order of court, to bis wife, | law rules of property prevail, are the circumwhile living separate from him, for her stances numerous in which it ought to be; bemaintenance; or it may be a like provision cause these rules put what justly belongs to the ordered for the sustenance of a woman di- wife as well as to the husband into his hands, vorced from the bond of matrimony, out of to be used by him for the family support as her late husband's estate-the latter branch / well as his own. Yet legislation in some of
£350 derived from bis business, the court ordered a settlement amounted to £1,050 a year. Farringber to settle £250 for life on her husband, and £60 ton v. Farrington, L. R. 11 Proh. Div. 84. on each child, and refused to make the allowance And a husband was awarded a settlement out of variable according to the possible valuation of the the wife's income to be held for bim and his chilwife's property. 20 & 21 Vict. $ 45, provided that dren, where she was guilty of adultery. but the on divorce for adultery of the wife, where she had court beld that it could only deal with property to property, the court could order such settlement of which she was entitled in possession or reversion. such property for the benefit of the innocent Milne v, Milne, L. R. 2 Prob. Div. 295. party and their children. Midwinter v. Midwinter And a husband was awarded half the wife's pres(1893] P. 93.
ent and reversionary income, for himself and his And under this statute, where the wife was children, where the marriage was dissolved for guilty of adultery, the court allowed to the bus- adultery of tbe wife. Noel v. Noel. L. R. 10 Prob. band on divorce such a portion of her settled prop- Div. 179. erty as would place him somewhat in the status in But the court refused to award the husband the which he would have been had the union contin-money due to a wife on a settlement out of her ued. March v. March, L. R. 1 Prob. & Div. 439. father's estate, and gave the property to their
So, a husband who bad accepted an allowance children on account of ber adultery. After a final under a deed of separation, and subsequently bad decree the court could not make a retrospective grounds for dissolution of marriage, was allowed order under 22 & 23 Vict. chap. 61, & 5, as to divian increased provision out of his wife's income un. dends due and payable before the date of the der 22 & 23 Vict, chap. 61, & 5, providing that the order. Paul v. Paul, L. R. 2 Prob. Div.93. court after a final decree of nullity of marriage And the court refused to change an order of setmay inquire into settlements and make such or- tlement so as to give the husband use of the ders as to the court shall seem fit. Benyon v. Ben-property settled on the wife, until she should yon, L. R. 1 Prob. & Div. 447, 45 L. J. P. 96, 24 Week. produce their child, which she had abducted, Rep. 950.
having been permitted access to the child by an On a motion subsequently made in this case to re. order of the court. 22 & 23 Vict. chap. 61, 85, was duce the allowance on account of the depreciation pot intended to be used for a collateral purpose. of the securities and estate of the respondent, the Symonds v. Symonds, L. R. 2 Prob, Div. 447. court refused to make any change. An order made As to varying marriage settlements where there is not liable to change on account of subsequent are no children, 22 & 23 Vict. cbap. 61, $ 5, was circumstances. Benyon v. Benyon, L. R. 15 Prob. amended (41 Vict. chap. 19. & 3), and under the Div. 29, 54.
amendment they may be varied. Yglesias v. YglesUnder 22 & 23 Vict. chap. 61, $ 5, the court had ias, L. R. 4 Prob. Div. 71, 40 L. T. N. S. 37, 27 Week. power to order a variation of the settlement, where Rep. 482. a decree of dissolution of marriage was granted on The court refused to vary a settlement by amendthe husband's petition and there had been a settle ing the clause giving to the wife an income of the ment in contemplation of marriage under the settled property, and adding, should be received Scotch law. Nundeley v. Nunneley, L. R. 15 Prob. by the petitioner dum sola et casta virerit. Gladstone Div. 186.
v. Gladstone, L. R. 1 Prob. Div. 442, 45 L. J. Prob. And where a wife refused to obey a decree of res. 82, 35 L. T. N. S. 380, 24 Week. Rep. 739. titution of conjugal rights the court ordered her And under 22 & 23 Vict. chap. 61, 85, providing to settle a permanent maintenance on her husband that after a final decree of dissolution of marriage under Mat. Causes Act 1884, $ 3, providing that the court may make such orders in regard to the where the application for restitution of conjugal property settled, either for the benefit of the chil. rights is by the husband, and the wife is entitled to dren of the marriage or their respective parents, as property or earnings, the court may order a settle- to the court shall seem fit, the court cannot make ment for the benefit of the petitioner and their an order favorable to the husband as to such settlechildren. Swift y. Swift, L. R. 15 Prob. Div. 118. ment, where the children are all dead, as when
A marriage settlement was varied allowing the there are no children there can be no parents. Corhusband £300 a year during the joint lives of the rance v. Corrance, L. R. 1 Prob. Div. 495. husband and wife, where the wife's income under
the states is setting strongly in a direction ulti- I support the findings and decree of the court. mately to exhibit the spectacle of rich wives To this attorneys for appellee answer that tbere supporting poor husbands; and of husbands was testimony offered and received at the trial defrauding their creditors while wealth em in the district court which was not made a part braces them in the arms of their wives. This of the bill of exceptions, and is not presented condition of things is for the legislatures, pot in this court, and that it is the established rule, the courts; but the courts, seeing these things, when such is the existent condition of the recmay also see a reason why they should not feel ord, that the question of the sufficienoy of the compunction when, in a proper case, they evidence to sustain the findings and judgment withhold all allowance of alimony to the wife.” will not be examined. The record in this case “Alimony is allowed the wife in recognition of discloses that the bill of exceptions was prethe husband's common-law liability to support pared and presented to the attorneys for apher. Therefore, in the absence of legislation pellee for examination and amendment, and readjusting domestic relations and allowing it, was returned to the attorney for appellant inthere being no corresponding liability on the dorsed, “I herewith returp ibis draft of a bill wife's part to support her husband, alimony of exceptions in the case of Charles Greene v. cannot be granted to him. In several of the Rachel B. Greene, submitted to me on the states, however, alimony, or an allowance from day of- 1893, and propose no amendments the wife's estate in the nature of alimony, is thereto.” It was said by this court in deciding allowed the husband by statute.” 1 Am. & the case of Cattle v. Haddox, reported in 14 Eng. Enc. Law, 2d ed. p. 92. "An action for Neb. 59: “Where a bill of exceptions puralimony cannot be maintained by the husband porting to contain all the testimony is subagainst the wife.” Somers v. Somers, 39 Kan.mitted to the adverse party for amendment, 132; Nelson, Div. & Sep. $ 904.
and such party certifies that he has no amendUnless allowed by our statute, the husband ments to propose to the osame, the court will could recover no alimony. It is argued that presume that such bill contains all the eviby virtue of the provisions of $ 10, chap. 25, dence, notwithstanding the certificate may not Comp. Stat. 1895, entitled Divorce and Ali- fully so certify.” But in Missouri P. R. Co.v. mony, the right to recover alimony was con- Hays, 15 Neb. 231, it was stated: “Where all ferred upon the husband. The section reads of the evidence used on a trial is not before us as follows: A petition or bill of divorce, ali- we cannot say that the finding was unsupmony, and maintenance may be exhibited by ported. It is true that the certificate to the a wife in her own name, as well as a husband; bill of exceptions is to the effect ibat it is comand in all cases the respondent may answer plete and contains all the evidence produced such petition or bill without oath; and in all on the trial. But we find within the bill itself, cases of divorce, alimony, and maintenance, in the questions and answers especially, inconwhen personal service cannot be bad, service testable proof that it does not. Where such by publication may be made as is provided by is the case the certificate will not be taken as law in other civil cases under the Code of Civil conclusive on that point.” In the bill of exProcedure." Before the enactment of this sec- ceptions we find the following statement: tion a wife was obliged to commence the ac- "Plaintiff now reads in evidence depositions of tion by a representative, by her next friend, Aaron Kisselbach, Euphrennia Cramer, Fanny and the evident intent of the enactment was to C. Widenor, Nicholas Harris, Howard Barallow her to commence the suit in her own ron
The depositions which the recname, without the interposition of a “next ord refers to are not in the bill of exceptions, friend," and the addition of the words as well and where the fact that evidence was used as a husband” was meant to and does convey which is not incorporated in the record apno other meaning than that the wife may com- pears, as it does here, it must be noticed, potmence an action in the same manner as a hus. withstanding the certificate to the bill and the band; and they do not reach back and connect presumption arising from the indorsement of with the words “alimony and maintenance,” counsel berein before quoted, and, where the and confer upon the husband the right-to ali- bill does not contain all the evidence used on mony and maintenance in an action of divorce, the trial, the objection that the finding and either of which, unless given by this section, decree of the trial court are not supported by he could not obtain in the action. The words the evidence cannot be considered. That it were but used as a part of the description of would not be fair or right to do so is too apparthe action which the lawmakers gave the wife ent to need argument in its support. Chamthe right to institute in her own name. It berlain v. Brouon, 25 Neb. 434; Aspinwall v. would be a strained construction which would Sabin, 22 Neb. 73; Nelson v. Jenkins, 42 Neb. give them the force of raising in the husband 133. The record before us does not disclose the new right to obtain alimony and mainte. any objection made to the litigation of the nance in an action of divorce. Wood v. Wood, question of the appellee's rights, if any, in the 8 Wend. 357. The rights of the appellee to re- property, in this, an action of divorce. The ceive any of the property, then, could not be question was presented by the pleadings, and, predicated upon his claim for alimony and as shown in the record, was fully submitted maintenance, but must be derived from such to the trial court; hence we need express no equities as accrued in his favor from the man opinion on it at present. Somers v. Somers, 39 ner of the original purchase of the property Kan. 132; Sherwin v. Gaghagen, 39 Neb. 238, and the subsequent improvement thereof, and and cases cited. his particip on therein and contributions It is urged by counsel for the appellee tbat thereto. In relation to this branch of the case, the appeal from the branch of the case in reit is asserted by appellant that there is no evi- spect to the property by the appellant presents dence, or at least not sufficient evidence, to l the whole decree here, and that the action of