Jones v. Jones

• Decision Date: 19 December 1901
• Citation: 131 Ala. 443,31 So. 91
• Parties: JONES v. JONES.
• Court: Alabama Supreme Court

31 So. 91

131 Ala. 443

JONES v. JONES.

Supreme Court of Alabama

December 19, 1901

Appeal from chancery court, Fayette county; John C. Carmichael Chancellor.

Action by Josephine E. Jones against William W. Jones. From an order dismissing plaintiff's petition that a former decree be set aside, and for execution to collect delinquent installments of alimony, she appeals. Affirmed.

George A. Evans, for appellant.

Daniel Collier, for appellee.

DOWDELL J.

The appellant filed her petition in the chancery court, praying that, under a former decree of said court in the case of Josephine E. Jones against William W. Jones, an order be made awarding her an execution under said decree for the collection of alimony which had accrued to her, and further praying for a reference to the register to ascertain the amount of alimony then due her by the defendant in the petition under said former decree of the court. This petition was answered by the defendant, William W. Jones, and proof was taken, and the cause submitted on petition, answer, and proof, and a decree rendered dismissing said petition. From this decree the present appeal is prosecuted.

The only question involved in this litigation is as to whether under the facts of the present case, the chancery court had the right and power to control its process for the enforcement of its former decree, and, further, the right to deny to petitioner an execution on said decree.

The following facts are shown by the record: On the 3d day of July, 1891, the court rendered a decree, on a bill filed by the petitioner against the defendant, divorcing both parties from the bonds of matrimony, and further decreed to the complainant in said cause temporary alimony and attorney's fees, and also decreed to the complainant permanent alimony, fixed in the sum of $25, payable by the defendant on the 3d day of each succeeding month thereafter. This decree further provided that, "upon the failure to pay such monthly installment, the court reserves the right to make the necessary orders for the coercion of the defaulting installments; and the court will retain the case on the docket for such orders as may be necessary in the premises." An appeal was taken from this decree to this court, and the same was by this court affirmed, with the modification that the permanent alimony fixed by the chancery court be reduced to $15 per month. 11 So. 11, 18 L. R. A. 95. It will be observed that this decree did not award an execution, but, on the contrary, reserved to the court the right to make the necessary orders for the collection of the installments as fixed, as well as necessary orders in the premises. Under this decree the defendant paid monthly installments of alimony up to the year 1894, when default was made. In 1895 the petitioner filed her petition in said chancery court, praying for an execution to issue for the collection of the alimony which had accrued and was then due her under said decree. The record recites that an answer and cross petition were filed to this petition by the defendant and that the cause was then...