Murray v. Murray

• Decision Date: 23 May 1888
• Citation: 4 So. 239,84 Ala. 363
• Parties: MURRAY v. MURRAY.
• Court: Alabama Supreme Court

4 So. 239

84 Ala. 363

MURRAY v. MURRAY.

Supreme Court of Alabama

May 23, 1888

Appeal from chancery court, Mobile county; THOMAS W. COLEMAN, Judge.

Bill in chancery by Catherine Murray against John Murray praying alimony. Decree for plaintiff. Defendant appeals.

Pillans, Torrey & Hanaw, for appellant.

G L. & H. T. Smith, contra.

STONE C.J.

The present bill is by the wife against the husband, and prays for alimony, but does not seek a divorce. Many, probably a majority of the adjudged cases and elementary books, hold that the relief here prayed cannot be granted, except as an incident to divorce proceedings instituted. This court obeying an instinct of humanity, and following the lead of several adjudged cases, declared a different doctrine nearly 40 years ago, and has steadfastly maintained it. Glover v. Glover, 16 Ala. 440; Hinds v. Hinds, 80 Ala. 225. The case last cited refers to most of the authorities supporting the doctrine. We need not repeat them here. The case made by the bill before us presents a case of harshness, cruelty, and almost unparalleled brutality on the part of the husband alike to his wife and to his children. And this most unnatural conduct is alleged to have been kept up, almost without intermission, for a series of years; not in paroxysms, but a frequent, if not an every-day occurrence. And yet, unnatural and inhuman as his conduct is alleged to have been, he not only did not deny the charges, though personally served with summons, but entirely failed to answer the bill. And he neither introduced testimony, nor cross-examined complainant's witnesses, in reference to these charges, so damaging to his reputation. The proof fully sustains the charges, made, and presents, in strong light the claims of the suffering wife to all the protection and relief the chancery court can give her. But we must not lose sight of the nature and object of the proceedings before us. It is not an application for a severance of the nuptial bonds. That can not be granted under the present bill. They are still to remain husband and wife, with the rights and disabilities attaching to, and consequent on, that relation. And, improbable as it may appear, time may bring calmer and better counsels, and reunite the family. At all events, we must deal with the case on the postulate that such consummation is possible. We have statutes which provide for alimony, temporary and permanent, but they make no provision for cases in which no divorce is sought. Code 1886, § 2331 et seq. They do not provide for such a case as this, except possibly in the analogies they furnish. Treating these parties, then, as husband and wife, and having no ground for anticipating a dissolution of that relation so long as they both shall live, we feel that we have no power to take the title of property of one and vest it in the other. Nor should we make or sanction any order which may result in a transfer of title from one to the other. Bacon v. Bacon, 43 Wis. 197; Quisenberry v. Quisenberry, 1 Duv. 197; Wallingsford v. Wallingsford, 6 Har. & J. 485; Adams v. Adams, 100 Mass. 365; Barber v. Barber, 1 Chand. 280, Almond v. Almond, 4 Rand. (Va.) 662, 15 Amer. Dec. 781; Methvin v. Methvin, 60 Amer. Dec. note, 668, 669. The only duty owed from the husband to the wife, in the case before us, which we have power to enforce, or aid in enforcing, is that of maintenance. And, in accomplishing this, we feel authorized to deal only with his income. We hold we cannot compel him to labor and earn an income, although some authorities assert that doctrine, (60 Amer. Dec. 680, in note to Methvin v. Methvin;) nor should we permanently devest him of the use of any property. We should, if possible, so deal with him, as to cause his interest and duty to point to the same end,-the maintenance, protection, comfort, and happiness of his family. The duty of the husband to provide maintenance for his wife is much more binding than mere contractual obligation. And it is not only a duty to her, but he owes it to the public, lest she become a charge upon it. And the measure of this duty is graded by his means and position in society; but the extent of its obligation-the style of living-is not a matter of judicial cognizance. Maintenance, not beyond the husband's means, is all the law can enforce. We have said this duty and obligation are not merely contractual. Their disregard...