Bauer v. Bauer

Decision Date27 July 1891
Citation49 N.W. 418,2 N.D. 108
CourtNorth Dakota Supreme Court

APPEAL from district court, Pembina county; Hon. CHARLES F TEMPLETON, Judge.

Order of the district court reversed, and the proceedings dismissed.

W. J Kneeshaw, for appellant.

E. W Conmy, for respondent.

Action to compel the defendant to support the plaintiff and her children, instituted by issuing an order to show cause why temporary alimony should not be awarded. On the return day defendant objected to the jurisdiction of the court on the ground that no summons had been served on the defendant. Objection overruled. Defendant appeals. Reversed.

OPINION

CORLISS, C. J.

The jurisdiction of the district court to make the order appealed from is questioned by this appeal. The proceeding of which this order was the culmination was evidently instituted under chapter 167 of the Laws of 1890 by the plaintiff to compel her husband to support her and their children living with her. No summons was ever served or issued. A petition was presented to the district court, and upon that an order to show cause was made and served upon the husband. On the return day of the order to show cause, the husband appeared specially by counsel, and objected to the jurisdiction of the court over his person, for the reason that no proper steps had been taken to subject his person to such jurisdiction. The objection was overruled, and, no cause being shown, the order appealed from was made requiring the husband to pay his wife $ 25 per month for her support and maintenance, and $ 35 as an attorney's fee. It appears to have been the view of the trial court that this statute was intended to provide a summary method--one that would bring to the wife speedy relief where the husband had failed in his duty of support and that, therefore, it was not intended that the dilatory proceeding by action should in such cases be resorted to. But in actions for divorce the wife need not wait until the final decree for relief. It is seldom that she does so wait. Temporary alimony is allowed pendente lite. An order to show cause may be secured and served with the summons, and as speedy a hearing had as could be and was had under this statute in this case, giving it the construction placed upon it by the trial court. It is true that permanent support cannot be decreed until after trial. But we must assume that the court will allow what is just pendente lite, and this is all the wife should receive. There was therefore no need of a more speedy remedy. But it was important to settle the question in this jurisdiction whether an independent proceeding could be instituted to compel the performance by the husband of his duty to provide for his wife and children. Many authorities--unquestionably the greater number--hold that no such action can be maintained; that the power of the court to compel by its decree a husband to care for his wife and children exists only in actions for divorce, absolute or limited, as an incident thereto, and to prevent a failure of justice. On the other hand, some tribunals, with commendable adherence to principle, putting aside precedents whose spirit is narrow and technical, asserted boldly the inherent power of a court of equity to coerce the faithful discharge of this, the highest duty of man in social life, the law affording the wife no adequate redress. 1 Amer. & Eng. Enc. Law, 469, 470, and cases cited in notes. It would be almost a brutal jest to speak of the law's justice to a wife because she might carry her husband's credit into every place where necessities were to be had. He who trusts under such circumstances knows in advance that he must sue to collect. How many are willing to extend credit that they may have the pleasure of subsequent litigation? How many are willing to have their right to...

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