Hollis v. Bryan

• Decision Date: 10 October 1932
• Docket Number: 30049
• Court: Mississippi Supreme Court
• Parties: HOLLIS v. BRYAN et al

143 So. 687

166 Miss. 874

HOLLIS v. BRYAN et al

No. 30049

Supreme Court of Mississippi

October 10, 1932

Division B

1 DIVORCE.

Wife not demanding alimony within seven-year statutory period held guilty of laches, barring recovery of installments due more than seven years (Code 1930, section 2303). i

2 EXEMPTIONS. Demand for alimony held not within terms of statute exempting soldier's compensation from claims of creditors, wife not being "creditor," within statute (World War Veterans' Act, section 22 [38 U.S.C. A., section 454]).

Term "creditor," as used in World War Veterans' Act section 22 (38 U.S.C. A., section 454), has reference to an ordinary contractual obligation by which creditors and debtors are created, or to statutory debt.

Suggestion Of Error Overruled November 21, 1932.

APPEAL from chancery court of Neshoba county.

HON. T. P. GUYTON, Chancellor.

Suit by Mrs. Letha Pearl Bryan Hollis against John L. Bryan, guardian of Marvin C. Bryan, and another. From a decree for defendant, complainant appeals. Reversed and remanded.

Reversed and remanded.

Frank L. Reich and R. W. Boydstun, both of Louisville, for appellant.

Counsel for appellee attempt to treat alimony as a debt and deal with the wife who has been adjudged alimony as the judgment creditor and the husband against whom alimony has been adjudged as the judgment debtor. We take no issue with the authorities cited upon the question of debtor and creditor, but aver that these authorities are not in point here. Were they controlling or even in point, a husband could not be imprisoned for failure to pay alimony.

Mississippi Constitution, section 30.

The wife to whom alimony has been adjudged has all the rights of a judgment creditor for the enforcement of her claims for alimony, and in addition thereto has the support of the strong arm of chancery and may call upon the chancery court to exercise plenary powers to collect alimony.

1 R. C. L. 866.

The purpose of the exemption laws are to protect the family and dependents of the exemptionist and not to protect the exemptionist.

Mosely v. Larson, 38 So. 234, 86 Miss. 288.

The court in the cases cited below were construing 38 U.S.C. A., pars. 454 and 618, which is section 22 of the World War Veterans Act of 1924, and amendments thereto, and held that the Congress did not intend to create any iron-clad exemptions by said act, and certainly if Congress did not intend to exempt money paid by the government to its ex-soldiers from taxation, it did not intend that said money so received by veterans should be exempt from the payment of alimony.

A. Martin v. Gilford County et al., 158 S.E. 847, 76 A.L.R. 978; Lambert v. Gilford County, 158 S.E. 849; Smith, Attorney-General, v. Board of Commissioners of Shawnee County, 132 Kan. 233, 294 P. 915.

Allen Crenshaw, of Washington, D. C., R. R. Dinsmore and D. G. Fountain, both of Jackson, for Veterans' Administration, and Harry M. Bryan, of Jackson, for appellees.

The holding of the chancellor in the last paragraph of his decree is decisive of this case. The court held that the funds sought to be reached being payments by the United States Government under the World War Veterans' Act, as amended, were exempt.

Section 454, United States Code Annotated, Act of June 7, 1924, chapter 320, section 22, 43 United States Statutes 613.

That the alimony decree of May 13, 1924, created the relationship of creditor and debtor as between appellant and appellee's ward cannot be successfully controverted. She was and is a judgment creditor and up to the time the decree was entered this status existed regardless of the facts that made up the reason for its entry.

Irrespective of the right in appellant to enforce an alimony decree by citation for contempt or otherwise, she is undoubtedly, so far as appellee's ward is concerned, the owner of a judgment debt.

18 Corpus Juris 24; Black's Law Dictionary, page 355; Black's Law Dictionary 297; Loughridge v. Bowland, 52 Miss. 546; Pickett v. Banks, 19 Miss. 445; Dixon v. Doe, 9 Miss. 70.

A decree for alimony is generally considered a debt of record as much as any other judgment for money. Accordingly the wife in whose favor an allowance has been made occupies the position of a judgment creditor of her husband, and as such she is entitled to avail herself of all the remedies given to judgment creditors.

1 R. C. L. 951; Jackson v. Coleman, 115 Miss. 535, 76 So. 545.

The case of Jackson v. Coleman, supra, is absolutely decisive of this case and, in our opinion, answers the contention of appellant irrespective of the fact that the act of Congress creating this gratuity to its ex-soldier absolutely rendered the funds paid to him exempt from the claims of creditors.

The question presented here is one of first impression in this state. The only direct authority, in fact the only case in the United States, which the United States Veterans' Administration, or we, as counsel for appellee, have been able to find bearing directly on the question at issue here is that of C. D. Glendy, Committee of Lemuel O. Smith, an Insane Person, v. Mary Haga Smith, decided by the circuit court of Smyth county, Virginia, August 28, 1931.

U. S. v. Hall, 98 U.S. 343, 25 L.Ed. 180; Manning v. Spry, 128 Iowa 191, 96 N.W. 873; U. S. v. Moyers, 15 F. 411; U. S. v. Ryckman, 12 F. 46.

Congress has the constitutional authority to exempt its compensation and insurance from all claims of creditors of its donees.

Rucker v. Merck (Ga.), 159 S.E. 501.

Other courts of last resort have treated decrees of divorce in granting alimony as judgments of record.

Barber v. Barber (U. S.), 21 How. 582, 16 L.Ed. 226; Dow v. Blake, 148 Ill. 87, 39 Am. St. Rep. 163, 35. N.E. 764; Allen v. Allen, 100 Mass. 374; Bullock v. Bullock, 51 N.J.Eq. 446, 27 A. 436; Knapp v. Knapp, 59 F. 641; Ulman v. Ulman, 148 Mich. 353, 111 N.W. 1072; Conrad v. Everich, 50 Ohio State 476, 35 N.E. 58, 40 A. S. R. 679.

OPINION

Ethridge, P. J.

The appellant was formerly the wife of Marvin C. Bryan, a disabled soldier receiving compensation from the United States government. In 1924, the appellant secured a divorce from Marvin C. Bryan and the custody of their minor child, in which proceeding the court allowed the appellant twenty dollars per month as alimony for a period of fifteen years to be paid monthly. Subsequent to this decree, and between two or three months thereafter, the appellant married a man named Hollis, giving, as appears from the record, a different name from Letha Pearl Bryan.

The court, in addition to the twenty dollars per month, allowed her an attorney's fee of a fixed amount.

Nothing appears to have been done under the decree until the filing of this suit to require the guardian of Marvin C. Bryan (who had been declared to be non compos mentis) to pay the amounts past due and unpaid under this former decree.

It was alleged in the petition that Marvin C. Bryan had been allowed additional compensation, and that his guardian had considerable funds in his possession, and the bill prayed that the guardian be directed to pay to the complainant (appellant here) the past-due installments.

The guardian demurred to the petition or bill on the ground that the action was barred by the statute of limitations, section 2303, Code 1930, and that the decree was inoperative under section 22 of the World War Veterans' Act as amended (38 U.S.C. A., section 454), and that as the petitioner had remarried, she was barred from receiving alimony. The demurrer was overruled, and thereupon the guardian answered admitting the decree in 1924, and the validity of the divorce therein granted, alleging that on July 19, 1924, after her divorce, she had remarried another under the name of "Miss Lee Cumberlin," and that said person is the same person who was formerly the wife of Marvin C. Bryan.

It was further alleged in the answer that the clerk of the chancery court of Winston county was appointed guardian of the minor child of Marvin C. Bryan and the appellant, and that from that time on the minor child had received monthly allowances from the government which would otherwise have been allowed to Marvin C. Bryan, and at the time the answer was filed forty dollars a month was being paid by the government (from which funds were allowed to Marvin C. Bryan) for the support of the child. It was further alleged that no demand or request had been ever made for the payment of the installments under the decree, and that the seven-year statute of limitations was applicable to this demand.

It was also contended that, by not asserting her rights for the period mentioned, she was guilty of gross laches and was not entitled to recover, and the answer prayed that the judgment heretofore rendered...