Kimble v. Kimble

Decision Date06 May 1897
Citation17 Wash. 75,49 P. 216
CourtWashington Supreme Court

Appeal from superior court, Skagit county; Henry McBride, Judge.

Action by Rebecca Kimble against David E. Kimble and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Million & Houser, for appellants.

Sinclair & Smith, for respondent.


The question lying at the threshold of this case is a jurisdictional one, viz.: Can a wife, who without cause has been abandoned by her husband, who possesses the means to contribute to her support, maintain an action for maintenance, uncoupled with or independent of an action for divorce? On this proposition the authorities are concededly conflicting. In some states the courts refuse to entertain jurisdiction of such a case, on the ground that alimony was at the common law only an incident to a divorce proceeding, and that an independent right thereto was not acknowledged, and that the right, if it exists at all, is a creature of statute, and the statute, which provides, as does our statute, for a decree for alimony as ancillary only to the divorce proceeding, must be construed as excluding the idea of an independent maintenance, on the theory expressed in the maxim that the expression of one excludes the others. Such view is held by the courts of Arkansas, Louisiana, Massachusetts, Michigan Missouri, New Hampshire, New York, Pennsylvania, and Wisconsin. Other courts have taken the view that courts of equity, exercising their plenary powers, would grant alimony as an independent remedy, in a case where divorce was not sought. Decisions to this effect have been made in Alabama Georgia, Iowa, Kansas, Kentucky, Maryland, Mississippi, New Jersey, Ohio, South Carolina, Texas, Virginia, California and West Virginia. In still other states the right has been maintained, but by statutes providing for an independent action; and in such cases the adjudications are, of course without value in determining the weight of authority on the general proposition involved. Mr. Bishop, in his excellent work on Marriage, Divorce, and Separation (section 1393), indulges in the following caustic criticism of the courts which have assumed jurisdiction of the independent action: "In spite of the fact that the law consists of reason, and that reason is constantly detecting and pointing out judicial blunders, by means whereof cases wrongly decided and false doctrines are overruled, it is no novel thing for a bench of judges to accept some thoughtless utterance of a predecessor as though it were reason, and decide cases upon it, without a particle of examination to see whether it is just or false. Indeed, through this sort of abnegation of the office of thinking, our law has been made to linger, and it now remains, in the shadows of the Dark Ages, instead of walking onward with the other sciences towards the light of a better future." In spite of this criticism, however, we are inclined to think that the better reasoning is advanced by the courts criticised; and, as this is a question of conflict of authority, we feel justified in deciding in accordance with the principles of equity and reason as they appeal to us. It might be that a blind adherence to the letter of the old English decisions would prevent the exercise of jurisdiction, although the English decisions themselves are conflicting, and different views are expressed by eminent English jurists on this question. In England there was a division of responsibility and jurisdiction in divorce and alimony cases, which is now, under our system of jurisprudence, consolidated and exercised in a simple manner by the courts of equity. For instance, in England the spiritual or ecclesiastical courts had jurisdiction to grant divorces, but where such divorces had been decreed by the ecclesiastical courts, either a mensa et thoro or a vinculo matrimonii, the courts of chancery exercised the jurisdiction of granting alimony; and the history of litigation on this subject cannot be read without forcing the conclusion that the courts were constantly seeking pretexts to grant separate maintenance. For instance, if an agreement for maintenance had been entered into, the courts would compel the performance of the agreement on the part of the husband, where he refused to carry out his contract. The old writ of supplicavit was resorted to. This proceeding was prosecuted by the wife whose treatment by her husband made it dangerous for her to live with him. Upon this fact appearing, the court would award her a right to live separate, and compel the husband to furnish her with a separate maintenance. If it were necessary to find authority at the common law for assuming jurisdiction in a case of this kind, it can be found in the execution of this writ; for, whatever technical term might be applied to the writ, the effect was to grant a separate maintenance to a wife who could not live with her husband. It is true that in this instance she could not live with her husband because his conduct endangered the safety of her person. The particular reason, however, that necessitated the separate domicile, is not important. The practical and controlling fact was that she could not live with him. This fact is just as controlling when she is prevented from living with him by the husband's abandonment of her and his refusal to live with her. The practical effect on the wife is exactly the same, her necessities are the same, and it seems to us that no reasonable distinction can be drawn in the application of the remedy. Another expediency which was adopted by the courts was to concede to the abandoned wife the right to use the credit of her husband. She was relegated to this indirect, unsatisfactory, and, in many instances, inadequate, remedy. She was allowed to purchase necessaries of traders, who in turn could maintain an action against the husband for their value. So that the question of separate maintenance was, after all, litigated, burdened, and complicated with the rights of third parties, involving questions of collusion, and other vexatious questions which must necessarily arise in a case of this kind, to say nothing of the improbability of the wife's being able to purchase on the credit of a husband who had abandoned her. The ordinary merchant would hesitate to dispose of his goods with the chance of making his collections, if made at all, through the agency of a delayed and expensive litigation. It would seem to be much more in consonance with a straightforward policy to settle the question of maintenance by direct suit between the parties interested, and where all the rights involved could be settled in one action, than to adopt a circuitous and indirect method of reaching the same result, and a method which would be liable at least to involve a multiplicity of vexatious suits. It is conceded that the husband is morally and legally obligated to maintain his wife. If this is a duty which is imposed upon the husband by law, it becomes the right of the wife to receive the benefits flowing from the performance of the duty, and she suffers a wrong when that duty is not performed. And, if it is true that equity provides a remedy for all wrongs, a court of equity ought not to make the announcement that it would compel an abandoned wife, who is without...

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36 cases
  • Rodieck v. Rodieck
    • United States
    • Arizona Court of Appeals
    • February 13, 1969
    ...allowed characterization of real property without absolute divorce, Martin v. Soden, 81 Idaho 274, 340 P.2d 848 (1959); Kimble v. Kimble, 17 Wash. 75, 49 P. 216 (1897), and we agree that such action would be proper where there exists a bona fide dispute of title between the spouses, i.e., w......
  • In re Parentage of L.B.
    • United States
    • Washington Supreme Court
    • November 3, 2005
    ...and alimony on annulment of marriage despite statutory scheme that allowed such recovery only in action for divorce); Kimble v. Kimble, 17 Wash. 75, 79-84, 49 P. 216 (1897) (while common law, at the time, permitted alimony only incident to divorce, and statutes similarly provided, holding t......
  • Simonton v. Simonton
    • United States
    • Idaho Supreme Court
    • October 1, 1920
    ...R. A., N. S., 1147; In re Popejoy, 26 Colo. 32, 77 Am. St. 222, 55 P. 1083; Hanscom v. Hanscom, 6 Colo. App. 97, 39 P. 885; Kimble v. Kimble, 17 Wash. 75, 49 P. 216; Dye Dye, 9 Colo. App. 320, 48 P. 313; Thurston v. Thurston, 58 Minn. 279, 59 N.W. 1017; Edgerton v. Edgerton, 12 Mont. 122, 3......
  • Schumacher v. Schumacher
    • United States
    • Washington Supreme Court
    • September 19, 1946
    ...order, and the wife was without fault, in which the defense of laches was denied although the order was many years old. Kimble v. Kimble, 17 Wash. 75, 49 P. 216, acknowledges that principle. McGill v. McGill, Kan. 324, 166 P. 501; Marshall v. Marshall, 164 Md. 107, 163 A. 874; Kaiser v. Kai......
  • Request a trial to view additional results
2 books & journal articles
    • United States
    • Washington State Bar Association Washington Family Law Deskbook (WSBA) Table of Cases
    • Invalid date
    ...Kimball v. Pub. Util. Dist. No. 1, 64 Wn.2d 252, 391 P.2d 205 (1964) . . . . . . . . . . . . . . . 2.03[3]; 2.05[2] Kimble v. Kimble, 17 Wash. 75, 49 P. 216 (1897) . 11.04 Kimpel, In re Marriage of, 122 Wn. App. 729, 94 P.3d 1022 (2004) . . . . . . . . . . . . . . . . . . 47.03[7] King v. O......
    • United States
    • Washington State Bar Association Washington Family Law Deskbook (WSBA) Chapter 11 Separations
    • Invalid date
    ...11.04 SEPARATE MAINTENANCE Washington courts have recognized the remedy of "separate maintenance" since 1897. In Kimball v. Kimball, 17 Wash. 75, 49 P. 216 (1897), the court noted that the parties may choose not to seek a divorce or a legal separation because of principles of conscience, re......

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