Lee v. Lee

• Decision Date: 09 June 1924
• Docket Number: 23947
• Citation: 101 So. 345,135 Miss. 865
• Court: Mississippi Supreme Court
• Parties: LEE v. LEE. [*]

101 So. 345

135 Miss. 865

LEE v. LEE. ^[*]

No. 23947

Supreme Court of Mississippi

June 9, 1924

Suggestion of Error Overruled Sept. 22, 1924.

(En Banc.)

1 DIVORCE. Duty of father to support children, whose custody awarded to wife, stated; right of divorced wife to recover from father for support furnished children stated.

Where a decree of divorce awards the custody of the minor children to the wife, but makes no provision for their sopport, it is still the duty of the father to support them, unless under the law there is some reason why he should be relieved therefrom; and, where the mother furnishes their support where no such reason exists, the father becomes her debtor to that extent, for which she may recover against him.

2. APPEAL AND ERROR. Cause not reversed because equitable and not of common-law jurisdiction.

Where an appeal is granted from a decree of the chancery court to settle the principles of the cause, and it is found that the only error committed by the trial court was in deciding that the cause was one of equity and not of common-law jurisdiction, under section 147 of the Constitution, the cause cannot be reversed on that ground.

3 SEQUESTRATION. Court of equity has jurisdiction to issue writ to seize and preserve personal property awaiting final decree.

Independently of any statute, a court of equity has jurisdiction, when appropriate, to issue a writ of sequestration for the seizure and preservation of personal property to await final decree in the cause (Dean v. Boyd, 86 Miss. 204, 38 So 297); one of its offices being mesne process to impound personal property upon which a lien is sought to be established.

SMITH C. J., and COOK and SYKES, JJ., dissenting.

HON. E. N. THOMAS, Chancellor.

APPEAL from chancery court of Washington county., HON. E. N. THOMAS, Chancellor.

Action by Mrs. Monnie B. Lee, for herself and as next friend and guardian of W. T. Lee, Jr., against W. T. Lee, Sr., and another. From the judgment rendered, defendant Lee appeals. Affirmed and remanded.

Decree affirmed and remanded.

Thompson & McWhorter, for appellant.

This is a suit, in chancery by a divorced wife, seeking to recover for moneys expended by her in support of her child by marriage with the appellant, since the divorce, said divorce having been granted in Tennessee.

In addition to this decree of the court of Tennessee granting personal decree for support as a basis for the suit, the bill also charges that twenty-five dollars per month is a reasonable support for the child since the date of the divorce, and that she has been compelled to support the child at a cost to her of twenty-five dollars per month.

To this is interposed a demurrer, challenging the jurisdiction of the court, and charging that the bill does not state a cause of action. Upon this demurrer being overruled, a motion to quash the writ of sequestration resorted to in the cause to impound moneys belonging to defendant Lee was made upon the grounds that the writ was improper, neither the bill nor the affidavit showing the requisite facts for the use of such a writ.

Did the court have jurisdiction? It should be noted, also, that the bill purports to be a suit by the mother for reimbursement in one instance and to be a suit by the child, by her as guardian, in another. It will be observed then that this is not a suit by a mother for the support of her child, nor can it be a suit to modify or change a decree of court touching support, etc., since it is merely a suit by one divorced in a foreign court for reimbursement for necessary expenditures made in behalf of the child, the custody of which was requested of, and was by the court granted to her. She not having been divorced by the court in this state to which she applied for an order touching the support of her child, and the child not being a ward of this state, clearly, chancery gets no jurisdiction in this state by virtue of the statutes on Divorce and Alimony and Minors. See section 1415, Hemingway's Code; 100 Miss. 460; McKay v. McKay, 125 Cal. 65, 57 P. 677.

As to that feature of the bill making it a suit by the child, it has been recently held by this court that a suit by a child does not lie against its father. Rawlings v. Rawlings, 83 So. 146. True, this was suit for future support, but the principle announced is as decisive of a suit for past support as for future support.

The ground of the suit in question, if indeed there be any, is legal. It is purely a contract action. Assumpsit, for money paid is the remedy, and in the case at bar could rest upon nothing but implied contract, no express contract being charged. Ramsey v. Ramsey, 69 Ind. 70, 23 N.E. 70.

However, in the court below, counsel seemed to rely exclusively in his argument upon the jurisdictional feature on Dean v. Boyd, 86 Miss. 204, it being contended by him that the writ of sequestration run upon the defendant below, of and by itself, conferred jurisdiction upon the court. As we understand it then, the question for this court to decide is: Does chancery have jurisdiction, independent of equities charged in the bill, to issue the writ of sequestration, impounding money against which no lien, claim, charge, or interest of any kind whatever is asserted? Counsel for appellee says: yes; we say: no.

The gist of the bill is: Complainant charged that defendant owed her money, then pointed out some money belonging to the defendant and asked the court to sieze it for her lest the defendant may spirit it away. For our statutes authorizing the issuance of the writ of sequestration, and prescribing what affidavit shall be made, see sections 322 (562), 523 (563), Hemingway's Code.

But counsel claims that independent of statute, equity, by its general jurisdiction, had authority to use the writ in cases of this kind, to conserve property, rather to seize property, not involved in the suit, and against which no lien or charge, nor interest is asserted in the bill. Dean v. Boyd, 86 Miss. 204, is relied on. Let us examine that case. Here the writ of sequestration was used to seize and conserve property upon which a mortgage had been given to secure money and supplies advanced for making a crop.

As to the necessity for lien, privilege or ownership, see 35 Cyc. 1390. As to the necessity for allegation of lien, see 35 Cyc. 1399; 96 N.W. 978; See also 50 S.W. 638; 24 R. C. L. 783; 24 R. C. L., secs. 4, 785. The suit at bar is in the nature of an attachment. But attachments in chancery are not available except by virtue of statute. Lumber Co. v. Bank, 86 Miss. 419. The Attachment available in chancery is provided for in section 293, section 536, Hemingway's Code.

Does the bill state a cause of action? The demurrer says that there is no equity on the face of the bill and that no cause of action is stated. That constructive service of process is not sufficient for a personal decree awarding alimony, See: Larson v. Larson, 82 Miss. 116; 108 Tenn. 444 (Pickle) ; 154 U.S. 34; 11 Howard (U.S.) 437; 1 R. C. L. 884, sec. 24.

There is no obligation to furnish support to a child whose custody is granted to mother, after the divorce, no provision having been made in the decree therefor. Brown v. Smith, 19 R.I. 319; 30 L. R. A. 680; 33 A. 466; Burritt v. Burritt, 29 Barb. 130. It may be observed here that this question is an open one in this state. But see Ramsey v. Ramsey, 23 N.E. 69, Hall v. Green (Maine), 32 A. 796.

A father is not liable for the support of his children after a decree of divorce in which their custody has been awarded to the mother. McKay v. McKay, 125 Cal. 65, 57 P. 677; Washington v. Catlin, 97 N.Y. 623; Husband v. Husband, 67 Ind. 583, 33 Am Rep. 107.

Walton Shields, for appellee.

The primary duty to support the children is upon the husband. Unless modified by the decree, he may be liable to the wife for the maintenance of their children while they live with her and this liability continues even though the custody is awarded her. The weight of reason and authority is where there is a divorce and custody of the children awarded to the mother, she can maintain an action against the husband to recover for expense incurred by her for their support if no provision is made in the decree therefor. 9 R. C. L., pages 479 to 486, pars. 295, 296, 297 and 301.

The same principle applies as to the obligation of the parent to support the child as in the case of the husband and wife. The foundation of the liability of the husband for necessaries furnished the wife is not one of implied agency of the wife, but is based upon her authority to do for him what the law and his duty require him to do and which he neglects and refuses to do. 13 R. C. L. 1188, 1189 and 1198 to 1900; 20 R. C. L. 625.

The Tennessee court had jurisdiction to grant the divorce and to award the custody of the child to the mother, but not to render a personal decree against the father. The jurisdiction of the chancery court in Mississippi in matters of writs of sequestration under its inherent equity power does not depend upon the assertion of title to or lien upon the property. See Dean v. Boyd, 86 Miss. 204, and Lumber Co. v. Bank, 86 Miss. 419. But under section 147 of the Constitution, the court below having assumed jurisdiction, appellant cannot now complain of any error or mistake as to whether the cause was of equity or common-law jurisdiction.

In this case the wife alleges that she, after having been awarded the custody of the child, was required to expend for the support of the child the sum of twenty-five dollars per month, which the defendant refused to do, and that the defendant refused to support the child. Under the authorities he is clearly liable to the wife therefor, and the case should be affirmed.

ANDERSON J. SMITH, C....