McFarland v. McFarland

• Decision Date: 28 February 1887
• Court: Mississippi Supreme Court
• Parties: JNO. P. MCFARLAND v. NANCY S. MCFARLAND

1 So. 508

64 Miss. 449

JNO. P. MCFARLAND v. NANCY S. MCFARLAND

Supreme Court of Mississippi

February 28, 1887

APPEAL from the Chancery Court of Lincoln County, HON. LAUCH MCLAURIN, Chancellor.

The case is stated in the opinion of the court.

Decree affirmed.

R. H Thompson, for the appellant.

1. This is not a divorce case, it is a suit for alimony without a divorce; it is purely an equity suit. Certainly, under our Mississippi practice, all evidence must be given in by depositions, of the taking of which notice must be given. Section 1938, § 1943, § 1944, Code of 1880, are the exceptions to the general rule, and this case falls within none of them. Of course, the statute allowing oral evidence in divorce cases does not apply to this suit.

2. The decree for alimony pendente lite ought not to have been granted.

I recognize fully the general rule announced in Verner v Verner, 62 Miss. 260, and Porter v. Porter, 41 Miss. 116; and those cases were correctly decided, because in each of them the duty of support rested upon the husband upon his own showing as well as upon the showing of his wife.

The duty of support, as a general rule, rests upon the husband so long as the marital relation exists; and the cases of Verner v. Verner and Porter v. Porter fall under this general rule but the exception to the rule is that the husband has fully discharged this duty when he has provided a home and support for the wife at that home, and the present case falls within the exception.

Mr. McFarland's home is open to his wife; she is of her own volition away from there; she could return when she pleased. (Though he is frank enough to admit his hopes that she may see proper to protract her absence.)

No public policy requires the courts to feed idle women who prefer to live away from their husbands; the public policy is the other way.

The rule announced in Porter v. Porter, supra, that alimony should be granted pendente lite when the original bill presents a case for relief is not an universal rule, and it must be limited to the state of case then before the court, a case where the bill was admitted by a demurrer at the time of the motion.

Suppose the marriage had been denied by Mr. McFarland? Would alimony be granted pendente lite? We have direct authority that it would not, or ought not to be allowed. Swearinger v. Swearinger, 18 Ga. 316; Vreeland v. Vreeland, 18 N.J.Eq. 43; Collins v. Collins, 71 N.Y. 269; York v. York, 34 Iowa; McFarland v. McFarland, 51 Iowa 565. Of course, then, there is an exception to said general rule; and in all reason that general rule ought never to be applied save where some matter in avoidance of the gravamen of the complaint is set up by the answer. See the following authorities: Begbie v. Begbie, 7 N.J.Eq. 98; County v. County, 30 Ark. 73; Walling v. Walling, 16 N.J.Eq. 389.

H. Cassedy, for the appellee.

1. An examination of the bill will show that its allegations bring it within the principle announced in the cases of Garland v. Garland, 50 Miss. 694; Dewees v. Dewees, 55 Miss. 315; Porter v. Porter, 41 Miss. 116; Verner v. Verner, 62 Miss. 260.

2. If it were conceded that the court erred in hearing oral evidence, it did not operate to the prejudice of appellant, as the allowance was justified from an inspection of the pleadings alone without resort to evidence.

But the court did not err in hearing the oral evidence, but was justified by the established rules of chancery practice.

"The evidence on interlocutory applications in causes and matters depending in the court is usually taken by affidavit, but it may be taken by oral examination before an examiner.

"And after decree in a cause the evidence may be taken by affidavit or by oral examination before an examiner or chief clerk of the judge." 1 Daniell's Chancery Pleading and Practice 888.

OPINION

COOPER, C. J.

The appellee exhibited her bill in the Chancery Court of Lincoln County against the appellant for alimony. The bill charges the marriage of the parties and that subsequently the husband drove the wife from home, and has refused to make provision for her support or to permit her to return to his domicile. The answer admits the marriage, charges the complainant to be of ungovernable temper, whereby the home of the defendant was made unhappy and his children forced to leave his home. It denies that the defendant compelled the complainant to leave his home, but says that she went of her own accord, and expresses the hope that she may not desire to return. On the coming in of the answer the complainant moved for alimony pendente lite and for suit money. On the hearing of this motion, over the objections of the defendant, the Chancellor heard oral testimony to show that the wife had no separate property and what sum would suffice to support her during the litigation, and also of what would be a reasonable fee for her attorney, and allowed alimony of...