Milliron v. Milliron

• Decision Date: 05 August 1896
• Parties: PHOEBE MILLIRON, Plaintiff and respondent, v. LORENZO MILLIRON., Defendant and appellant.
• Court: South Dakota Supreme Court

9 S.D. 181

68 N.W. 286

PHOEBE MILLIRON, Plaintiff and respondent, v. LORENZO MILLIRON.,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Brule County, SD

Hon. D. Haney, Judge

Affirmed

S. H. Wright

Attorneys for appellant.

James Brown

Attorneys for respondent.

Opinion filed Aug. 5, 1896

FULLER, J.

Upon the application of plaintiff, supported by certain affidavits and her verified complaint in this action for separate maintenance, the court below made an order requiring the defendant to pay plaintiff $100, with which to retain counsel, and $25 per month for the support of herself and her children pending the suit, and from said order the defendant appeals to this court.

The marriage is admitted, and it appears from the complaint and affidavits used upon the hearing of the motion for temporary alimony and counsel fees that the defendant is a dentist by profession, and obtains for his services money amply sufficient to enable him to provide for his family and contribute to his wife, who is entirely without means, the required maintenance, and the amount found by the court to be necessary in order to enable her to prosecute her cause, which, if proved as alleged, would fully justify a decree granting the relief for which she prays. Counsel for appellant maintains that in an action for separate maintenance, when an answer places in issue the facts alleged in the complaint, the court is without power to make the order complained of, or grant any relief, until the cause has been tried and the facts determined by a jury; and to sustain such contention he confidently relies upon Sec. 6 of the bill of rights, in which it is declared that “the right to trial by jury shall remain inviolate and shall extend to all cases at law without regard to the amount in controversy.” In support of his position he also cites Sec. 5032 of the Comp. Laws, and further insists that in this state a court of equity has no jurisdiction to compel a husband to provide for the support of his wife pending an action for separate maintenance. The statute expressly provides that while an action for divorce is pending the court may compel the husband to pay alimony for the support of his wife and children, or to enable her to prosecute or defend the action; and, although the divorce be denied, the court has power to require the husband to provide for the maintenance of the wife and her children, or any of them. Comp. Laws, §§ 2581, 2582. That the court had jurisdiction of the party is apparent from an inspection of the record, and the facts stated in the complaint disclose subject matter clearly within equitable cognizance, and sufficient, if true, to justify a decree consistent with plaintiff’s prayer for relief. While the statute makes no express provision for temporary alimony, except as an incident to an action in which the marriage relation is sought to be annulled or dissolved a court...