Bailey v. Bailey

• Citation: 28 N.W. 443,69 Iowa 77
• Parties: BAILY v. BAILY
• Decision Date: 12 June 1886
• Court: United States State Supreme Court of Iowa

28 N.W. 443

69 Iowa 77

BAILY v. BAILY

Supreme Court of Iowa, Des Moines

June 12, 1886

Appeal from Ringgold Circuit Court.

ACTION FOR A DIVORCE. Decree for the plaintiff and defendant appeals.

REVERSED.

R. F Askren and Laughlin & Campbell, for appellant.

Henry & Spence, for appellee.

OPINION

SEEVERS, J.

Upon the application of the plaintiff, the court "ordered that the defendant pay to the clerk of this court, for the benefit of the plaintiff's attorneys, fifty dollars, and plaintiff fifty dollars, against Friday morning next, and in default of such payment then judgment therefor." On the same day the order was made the defendant moved the court to extend the time within which he was ordered to pay the temporary alimony, and supported the motion by affidavits. This motion was overruled. The defendant moved the court to continue the cause, and order that it be heard on depositions. This motion was overruled and the court ordered that it should be "heard on oral evidence taken in open court." Thereupon the case was called for trial. The defendant asked to be permitted to urge his defense, as pleaded by him. This was refused, and the court, against the defendant's objections, permitted and allowed plaintiff to proceed and introduce evidence to sustain the allegations of her petition, "and offered to permit defendant to cross-examine the witnesses introduced by plaintiff; and defendant asked the court and offered to introduce evidence both on the question of divorce and that of alimony, and the court refused, and would not permit defendant to introduce proof of any allegations of defendant's answer, nor to controvert the allegations of plaintiff's petition, nor to controvert any fact testified to by the plaintiff's witnesses." To this order the defendant excepted, and we are required to determine whether the court erred in this respect.

The grounds upon which a divorce was asked were controverted in the pleadings filed by the defendant. The only adjudged cases cited by counsel in favor of their respective theories are Peel v. Peel, 50 Iowa 521, and Maben v Maben, 67 Iowa 284, 25 N.W. 244. Neither of these cases has any material bearing upon the question to be determined. The English practice is referred to in 2 Bish. Mar. & Div., § 498; and it is there stated that the question as to the enforcement of a decree for alimony depends somewhat on the statutes of the several states of this country. This is undoubtedly true. Under the statutes of some of the states and the present English practice, a failure to comply with an order of the court granting temporary alimony is regarded as a contempt, and its payment is enforced by the commitment of the husband. It is probably true that ...