Morton v. Morton
| Decision Date | 31 March 1863 |
| Citation | 33 Mo. 614 |
| Parties | JAMES MORTON, Plaintiff in Error, v. CORNELIA MORTON, Defendant in Error. |
| Court | Missouri Supreme Court |
Error to St. Louis Circuit Court.
A. Martin, for plaintiff in error.
I. The decree was illegal. There was no power expressed in our statute of divorce and alimony by which the Circuit Court is authorized to allow alimony pendente lite, when the wife is defendant. (R. C. 1855, p. 664, § 8.) Sec. 11 cannot affect the question, as it refers to alimony in cases of abandonment where there is no action pending. (Doyle v. Doyle, 26 Mo. 543.)
Nor can any such power be implied from the language used or the other powers granted, even though it should be admitted that alimony pendente lite, as a general proposition, was incident to the power to grant a divorce. Such a conclusion in respect to our statute is rebutted by the fact that it specified a certain condition in which alimony may be granted pending the action, showing that the Legislature has not left the power to be exercised as incidental to any other power, but has made an express grant of it. If the statute was silent on the question of alimony pendente lite, there might be some ground for such a position.
II. It will be readily admitted that the court could not grant a divorce for reasons not specified in the statute; and, upon the same principle, it is maintained that alimony cannot be allowed except for the reasons and under the circumstances specified in the statute. (Doyle v. Doyle, 26 Mo. 545.)
III. There is but one other source from which the power could be supposed to come, that is the common law. But, whether it can be derived from the common law will depend upon whether the ecclesiastical law of England is a part of the common law of Missouri.
It may be admitted that, according to the ecclesiastical law of England, the wife was entitled to alimony pendente lite whether she was plaintiff or defendant, although it may well be doubted whether this was established at the period of the revolution, when we ceased to derive common law from England. The first reported case in which this principle was recognized was Bird v. Bird, decided in 1752. The next case of any importance, which may be considered as putting the question beyond doubt, was Wilson v. Wilson, (2 Haygood, 203,) decided in 1797. The only other case, besides Bird v. Bird, that came off before the revolution was the case of Holmes v. Holmes, decided in 1755, and referred to in a note to the case of Wilson v. Wilson, (2 Haygood, 203), in which the alimony was refused because the wife had an income of £300. But, waiving this objection, and admitting that she is entitled to alimony by the ecclesiastical law, is that a part of the common law and binding upon the Circuit Court?
To maintain that the subsequent acts conferring jurisdiction upon the common law courts to grant divorces conferred any other authority than that expressed in them would be an unreasonable task. If the common law courts have no inherent jurisdiction, it ought to follow that what was not expressly conferred by statute remains dormant yet. The following well considered cases will show the kind of opposition to Mr. Bishop's position: Parsons v. Parsons, 9 N. H. 309; Burtis v. Burtis, 1 Hop. 557; Perry v. Perry, 2 Paige, Ch. 501; Dickenson v. Dickenson, 3 Mur. 327; Ristine v. Ristine, 4 Rawle, 460; Olin v. Hungerford, 10 O. 268; 2 Dane's Ab. 301. The authorities on the other side are, McGee v. McGee, 10 Georgia, 477; North v. North, 2 Barb. Ch. 241; Bishop, M. & D., ch. 2, § 21, n.
And, in accordance with this view, may be cited the following authorities, which are all the stronger as that they are from States in which the ecclesiastical law was supposed to have been introduced by emigration; alimony pendente lite cannot be given where the statute is silent: Wilson v. Wilson, 2 Dev. & Bat. 377; Harrington v. Harrington, 10 Vt. 505; Coffin v. Dunham, 8 Cush. 404; Shannon v. Shannon, 2 Gray, 285; Yule v. Yule, 2 Stock., Ch. 138; Sandford v. Sandford, 2 R. I. 64.
This was a suit for divorce, by the husband against the wife, in which the cause alleged was adultery. The defendant answered, traversing the allegations of the petition touching the cause for the divorce. After coming in of the answer, the court, at the instance of the defendant, ordered the plaintiff to pay to her...
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Chapman v. Chapman
...... substantial rights of the parties, except as the common law. is modified by statute. [ Morton v. Morton, 33 Mo. 614; Waters v. Waters, 49 Mo. 385; Crews v. Mooney, 74 Mo. 26; 1 Bishop on Marriage and Divorce (6. Ed.), sec. 86.] Taking ......
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Chapman v. Chapman
...English practice, so far as it relates to the substantial rights of the parties, except as the common law is modified by statute. Morton v. Morton, 33 Mo. 614; Waters v. Waters, 49 Mo. 386; Crews v. Mooney, 74 Mo. 26; 1 Bishop on Marriage and Divorce (6th Ed.) § 86. Taking away privileges i......
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Brown v. Brown
...be paid for the support of the wife during the pendency of her application for a divorce." Rev.St.1855, c. 55, § 8. The Court in Morton v. Morton, 33 Mo. 614, held there was no authority to grant alimony pendente lite when the divorce action had been instituted by the husband. A similar res......
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Brown v. Brown
...for the support of the wife during the pendency of her application for a divorce." Rev.St.1855, c. 55, § 8. The Court in Morton v. Morton, 33 Mo. 614, held that there was no authority to grant alimony pendente lite when the divorce action had been instituted by the husband. A similar result......