Co gbr v. coger &t al.

• Decision Date: 21 April 1900
• Citation: 48 W.Va. 135
• Court: West Virginia Supreme Court
• Parties: Co gbr v. coger &t al.

48 W.Va. 135

Co gbr

v.coger &t al.

Supreme Court of Appeals of West Virginia.

Decided April 21, 1900.

1. Divorce Vacation OrderAlimony.

When a bill praying for a divorce and alimony is presented to the circuit judge in vacation by a wife before any process has been issued against the defendant husband, such judgment has no jurisdiction to enter a decree for alimony pendente lite or permanent alimony without first in some manner summoning the husband to appear, and thus affording him an opportunity to be heard, and, should such a decree be entered without first citing the husband, a writ of prohibi: ion will lie to prevent its enforcement, (p. 136).

2. Alimony Rule in Alloioing.

The general rule is that the wife is entitled to support corresponding to her condition in lile and the fortune of her husband, and when she presents a bill for divorce, and prays for alimony, the husband should be accorded the privilege of representing his pecuniary condition to the court or judge, (p. 138).

Application of M. B. Coger for a writ of prohibition against Delilah Coger and others.

Writ Granted.

Dulin & Hall, for petitioner. W. E. R. Byrne, for respondents.

English, Judge:

On the 8th of November, 1899, Delilah Coger presented her bill in equity to the judge of the circuit court of Braxton County in vacation, praying for a divorce from the bonds of matrimony and for alimony pendente lite and permanent, for an injunction to restrain her husband from disposing of certain property therein named and for general relief.

On that day, said judge made a vacation order directing that the defendant Marcellus B. Coger do pay to the plaintiff the sum of forty dollars with which to carry on her suit against him, and pay the expenses thereof as temporary alimony, and that he do pay her the further sum of eight dollars per month for the support of herself and their two infant children until the further order of the court; also restraining and enjoining the defendant from selling or disposing of any of the personal property belonging to plaintiff then in his possession, or of charging any of the real estate or personal property of his own until the further order of the court, Ind: that he hold the same in readiness to answer any decree of the court thereafter made in the cause. On November 13th, 1899, said decree was entered by the clerk of said court on the order book, and a subpoena in chancery was issued against said Marcellus B. Coger to answer the bill of said Delilah returnable to December rules, 1899; and on the same day an execution was issued by said clerk against the goods and chattels of said defendant, for the sum of fortyeight dollars, with legal interest thereon from November 8, 1899.

The defendant, M. B. Coger, thereupon presented his petition to this Court praying a writ of prohibition to restrain said circuit court and Delilah from enforcing said order by execution or otherwise. The plaintiff by counsel demurred to said petition, claiming that the judge of the circuit court of Braxton had full and complete jurisdiction, both of the cause of action and the parties litigant as shown in said petition, and that in directing the order in said petition complained of said judge did not act in excess of his jurisdiction, nor was he guilty of any abuse of power or usurpation of authority whatever; that petitioner might have availed himself of a motion to quash the execution, or to correct or vacate the order awarding the same in order to correct an alleged error or irregularity to his prejudice before making application for writ of prohibition; that said order was appealable, and petitioner might have sought relief by appeal, and that prohibition was not the proper remedy.

Our statute, chapter 110, section 1 of the Code, provides that: "The writ of prohibition shal lie as a matter of right in all...