Earle v. Earle

Decision Date17 September 1889
Citation27 Neb. 277,43 N.W. 118
PartiesEARLE v. EARLE.
CourtNebraska Supreme Court


Syllabus by the Court.

1. Courts of general equity and common-law jurisdiction are not necessarily limited in the exercise of such jurisdiction to the provisions of the statutes.

2. The law of the land having made it the legal duty of a husband to support his wife and children, courts of equity within this state have the power, in a suit by the wife for alimony and support, to enforce the discharge of such duty, without reference to whether the action is for a divorce or not.

3. Whether or not section 40 of chapter 25 of the Compiled Statutes confers such authority by implication, quœre.

Error to district court, Douglas county; WAKELEY, Judge.Estabrook & Irvine and A. Steere, Jr., for plaintiff in error.

Savage, Morris & Davis, for defendant in error.


This action was instituted in the district court of Douglas county, and was by the wife against the husband for maintenance and support; but without a prayer for divorce. It was alleged in the petition, substantially, that plaintiff and defendant were married on the 15th day of May, 1871; that the issue of the said marriage was one child, born in July, 1879; that on or about the 1st day of January, of that year, defendant sent plaintiff away from him, and has ever since refused to permit her to return, contributing to her support and maintenance separate and apart from himself; that in the month of August, 1885, defendant ceased and refused to further provide for the support of plaintiff and their said child, and that at no time since that date has he contributed or offered to contribute in any way to their support or maintainance; that plaintiff was entirely without means to support herself and child during the pendency of the suit; that she was also without means to carry it on; that her daughter, the child aforesaid, now seven years of age, was wholly dependent upon her (the plaintiff) for support, maintenance, care, and education; that defendant was an officer in the United States army, commissioned as first lieutenant, and receiving a salary of $120 per month. The prayer of the petition was that defendant be required to pay plaintiff a reasonable sum for her maintenance and support during the pendency of the suit, and such further sum as would enable her to carry on the action; and that on a final hearing she be decreed reasonable alimony out of the property and income of defendant, together with the costs, etc., with prayer for general relief. To this petition, defendant interposed a demurrer upon two grounds: First, that the court had no jurisdiction of the subject of the action; and, second, that the petition did not state facts sufficient to constitute a cause of action. This demurrer was sustained by the district court, to which plaintiff excepted; and, upon her refusing to amend or further plead, the cause was dismissed. The case is presented to this court by proceedings in error, the error assigned being that the court erred in sustaining the demurrer. The question presented is whether or not an action for maintenance and support can be maintained in this state when not coupled with a petition for a divorce, either from the bonds of matrimony or from bed and board. Upon this question the statutes of this state are substantially silent. The nearest approach to authorizing an action of this kind is found in section 40, c. 25, Comp. St., entitled “Divorce and Alimony.” The chapter provides for divorces of two kinds, to-wit, of divorce from the bonds of matrimony, and from bed and board. Section 40, in treating of an action for a divorce from bed and board, provides that “in case of an application for a divorce from bed and board, although a decree for such divorce be not made, the court may make such order or decree for the support and maintenance of the wife and children, or any of them, by the husband, or out of his property, as the nature of the case may render suitable and proper.”

While it appears that an order of the kind sought in this case cannot, perhaps, be made, except in an action for a divorce from bed and board, yet it is specially provided that the authority of the court to make an order for the maintenance of the wife or children, or either of them, by the husband, shall not depend upon a decree of divorce from bed and board having been rendered, but that such order may be made without reference thereto. By this section the court is given the authority and jurisdiction to render a decree of the kind sought by plaintiff; but it is contended that such order can only be made in an action for a divorce of the kind named. Assuming that this section does not give the court the authority to make the order claimed by plaintiff, but of which there may be some doubt, it then becomes necessary to inquire whether a court of equity would have the jurisdiction independent of any statutory provision upon the subject. We apprehend that courts of common-law and equity jurisdiction are not necessarily limited to the provisions of the statute in matters of jurisdiction, and might, perhaps, render such decrees in equity causes as the nature of the case would require, assuming that the plaintiff showed that she was entitled to equitable relief. This question has been before the courts of some of the states, and it...

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13 cases
  • Schooley v. Schooley
    • United States
    • Iowa Supreme Court
    • October 25, 1918
    ...A. (N. S.) 697;Cochran v. Cochran, 42 Neb. 612, 60 N. W. 942;Anderson v. Norvell, 134 Mo. App. 188, 113 S. W. 733;Earle v. Earle, 27 Neb. 277, 43 N. W. 118, 20 Am. St. Rep. 667. This categorical formulation, it seems to me, conclusively demonstrates that a judgment ordering a payment for th......
  • Schooley v. Schooley
    • United States
    • Iowa Supreme Court
    • October 25, 1918
    ...Cochran v. Cochran, 42 Neb. 612 (60 N.W. 942); Anderson v. Norvell-Shapleigh Hdw. Co., 134 Mo.App. 188 (113 S.W. 733); Earle v. Earle, 27 Neb. 277 (43 N.W. 118). categorical formulation, it seems to me, conclusively demonstrates that a judgment ordering a payment for the support of wife and......
  • McGuire v. McGuire
    • United States
    • Nebraska Supreme Court
    • June 26, 1953
    ...which are clearly distinguishable from the facts in the instant case as will become apparent. In the case of Earle v. Earle, 27 Neb. 277, 43 N.W. 118, 20 Am.St.Rep. 667, the plaintiff's petition alleged, in substance, the marriage of the parties, that one child was born of the marriage, and......
  • Lippincott v. Lippincott
    • United States
    • Nebraska Supreme Court
    • February 16, 1950
    ...Cizek, 76 Neb. 797, 107 N.W. 1012. In Jensen v. Jensen, 144 Neb. 857, 15 N.W.2d 57, 58, a divorce action, citing Earle v. Earle, 27 Neb. 277, 43 N.W. 118, 20 Am.St.Rep. 667, and Wassung v. Wassung, 136 Neb. 440, 286 N.W. 340, this court held: 'Courts of general jurisdiction have the inheren......
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