Harding v. Harding

• Decision Date: 31 December 1902
• Citation: 92 N.W. 1080,16 S.D. 406
• Parties: AMANDA HARDING, Plaintiff and respondent, v. LEBEUS G. HARDING, Defendant and appellant.
• Court: South Dakota Supreme Court

16 S.D. 406

92 N.W. 1080

102 AmStRep 694 (1902)

AMANDA HARDING, Plaintiff and respondent,

v.

LEBEUS G. HARDING, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Lawrence County, SD Hon. Joseph B. Moore, Judge Modified and affirmed W. G. Rice, W. H. Parker Attorneys for appellant. Frawley & Laffey, Deadwood, SD Attorneys for respondent. Opinion filed December 31, 1902

CORSON, J.

On the 3d day of January, 1898, the circuit court of Lawrence county entered a judgment in favor of the plaintiff, granting her a divorce from the defendant, and in the decree it was provided that the defendant pay plaintiff’s attorney fee, amounting to $100, and $35 per month alimony, payments to be made monthly on the 10th day of each calendar month. It was alleged in the complaint, and found by the court, that the husband and wife were possessed of a homestead in the First ward of Deadwood, of about the value of $2,000, but in the decree no mention is made of the same. The defendant having failed to make the payments specified in the decree, the plaintiff filed her petition praying for a modification of the decree, and, upon the hearing of the same the court, on the 29th day of January, 1900, made an amended decree, the material parts of which are as follows:

“Ordered, adjudged, and decreed that the judgment of the court entered herein on the 3d day of January, 1898, be, and the same hereby is, modified in reference to the payment of alimony only, in this: that the plaintiff take, and the defendant pay, the sum of $500 in full of permanent alimony herein, and that the real estate hereinbefore described, owned by the defendant, be sold as provided by law for the sale of real estate, and that, out of the proceeds derived therefrom, the plaintiff be paid the sum of $500; and the sheriff of Lawrence county, South Dakota, is hereby appointed by the court as commissioner to make such sale, and he is authorized and empowered to sell said real estate under this decree in the manner provided by law for the sale of real estate on execution, and a certified copy of this decree, issued out of the clerk’s office, shall be his authority for the making of such sale; and, out of the proceeds derived from such sale, the costs shall be paid first, then the sum of $500 to the plaintiff herein, and the remainder, if any, shall be paid to the defendant; and said commissioner is directed to make a return to this court of his proceedings hereunder, and to make and execute to the purchaser or purchasers at such sale a deed of the premises so directed to be sold, upon his receiving the purchasing price therefor, which deed, on confirmation of the sale by this court, shall pass and convey to such purchaser or purchasers all the right, title, and interest of the plaintiff and defendant in this action at the date of this decree, or at any time subsequent thereto. The purchaser or purchasers at such sale shall be let into immediate possession and occupancy of said premises so sold, and the sheriff of said county, so appointed as aforesaid, is authorized and directed to deliver the possession of the premises sold, to such purchaser or purchasers. Done in open court this 29th day of January, 1900.”

From this part of the amended decree, the defendant has appealed to this court.

It is contended on the part of the appellant: First, that, as the homestead is not referred to in the former decree, the court had no jurisdiction by an amendment to subject the homestead to the payment of alimony; second, that the court had no authority to decree that the possession of the property, when sold, should be immediately delivered to the purchaser; third, that the court had no authority to deprive the party of his right of redemption by directing that a deed should be executed to the premises upon the confirmation of the sale, and decreeing that the said deed should convey to the said purchaser or purchasers all of the right, title, and interest of the plaintiff and defendant in this action, at the date of the decree. The court, in amending the decree in this case, evidently proceeded under the provisions of section 2584, Comp. Laws, which reads as follows:

“Where a divorce is granted for an offense of the husband, the court may compel him to provide for the maintenance of the children of the marriage, and to make such allowance to the wife for her support during her life or for a shorter period, as the court may deem just, having regard to the circumstances of the parties respectively; and the court may from time to time modify its orders in these respects.”

This court, in construing that section in Greenleaf v. Greenleaf,(1894), use the following language:

“As will be observed, under the provisions of these sections the court is vested with full power to modify its decree and orders relating to alimony, or allowance to minor children. These provisions of the statute were evidently adopted for the purpose of enabling the court to make such modifications or changes in its decree or orders relating to alimony. or the support or maintenance of minor children, from time to time, as the circumstances of the parties might require, and they should therefore receive a liberal construction in furtherance of justice.”

Section 2585 provides as follows:

“The court may require the husband to give reasonable security for providing maintenance, or making any payments required under the provisions of this chapter, and may enforce the same by the appointment of a receiver, or by any other remedy applicable to the case. The court, in rendering a decree of divorce, may assign the homestead to the innocent party, either absolutely or for a limited period, according to the facts in the case, and in consonance with the law relating to homesteads.”

The court, being empowered to place the property of the defendant in the hands of a receiver in order to enforce the payment of alimony, and having the power to assign the homestead to the innocent party either absolutely or for a limited period, would necessarily have the power to order the homestead sold in order to enforce the payment of alimony decreed to the wife, and the power vested in the court to enable it to render the original judgment remains vested in it, under the provisions of the statute enabling it to render an amended judgment which the circumstances of the case may require. The evident purpose and object of the legislature, in adopting these various provisions, was to give the court full power and authority to enter such judgment, and, upon a proper showing, to modify the same in such manner as the exigencies of the case might require, The present case presents a striking...