Olds v. Olds

• Decision Date: 21 June 1935
• Docket Number: 42769.
• Citation: 261 N.W. 488,219 Iowa 1395
• Parties: OLDS v. OLDS.
• Court: Iowa Supreme Court

261 N.W. 488

219 Iowa 1395

OLDS v. OLDS.

No. 42769.

Supreme Court of Iowa.

June 21, 1935

Appeal from District Court, Floyd County; A. B. Lovejoy, Judge.

Supplemental opinion.

Supplementing opinion in 260 N.W. 1.

F. F Faville, of Sioux City, W. G. Henke, of Charles City, and Robert E. Cantwell, Jr., of Chicago, Ill., for appellant.

Senneff, Bliss & Senneff, of Mason City, for appellee.

MITCHELL, Justice.

The opinion in this case is changed in the following particulars By striking from the opinion that part commencing with the words: " The first error which the appellant argues," down to " the next question raised by the appellant," and inserting in lieu thereof the following:

" The first error which appellant argues is that a judge of a district court in vacation has no jurisdiction whatever to order an attachment to issue without bond, in a suit for separate maintenance. In the case at bar a judge of the district court in vacation ordered that an attachment issue without bond against the property of the appellant upon presentation to him of the petition for separate maintenance. The appellant duly filed a motion to dismiss the attachment, which was overruled.

In this state divorce is wholly statutory. Section 10469 provides: ‘ An action for a divorce shall be by equitable proceedings, and no cause of action, save for alimony, shall be joined therewith.'

The jurisdiction, the grounds for divorce, the right to an attachment, the denial of remarriage, and other matters pertaining to divorce are all provided for in the Code.

The first time that the question of separate maintenance came before this court was in the case of Graves v. Graves, 36 Iowa, 310, 14 Am.Rep. 525. The court said at page 311: ‘ The main question involved in this controversy is, whether a court of equity has the authority or jurisdiction to entertain an action brought for alimony alone, and to grant such alimony where no divorce or other relief is sought.'

At page 313 the court continued: ‘ The question here involved has never been before, or decided by, this court.'

And then the court said at page 314: ‘ It seems to us, that upon well-settled equity principles, as well as upon considerations of public policy, the action may be maintained without asking a divorce or other relief.'

In Shipley v. Shipley, 187 Iowa, 1295, at page 1306, 175 N.W. 51, 55, this court said: ‘ Though an action for separate maintenance is not authorized by statute, it was held in Graves v. Graves, 36 Iowa, 310, 14 Am.Rep. 525, upon well-settled equity principles, as well as upon considerations of public policy, that the wife may maintain an action for separate maintenance and support without asking for a divorce; and in Finn v. Finn, 62 Iowa, 482, 17 N.W. 739, that the court may require the husband to provide means of prosecuting such an action when instituted.'

Again, in Freet v. Holdorf, 205 Iowa, 1081, 1083, 216 N.W. 619, 620, this court said: ‘ The action of separate maintenance is not based upon specific statutory provision, but rests on broad principles of equity, and may be granted though no divorce or other relief is sought. Graves v. Graves, 36 Iowa, 310, 14 Am.Rep. 525.'

And in the recent case of Bartlett v. Bartlett, 214 Iowa, 616, at pages 618, 619, 243 N.W. 588, 589, this court said:

‘ Separate maintenance without a divorce in this state is allowed independent of statute. Kalde v. Kalde, 207 Iowa, 121, 222 N.W. 351; Davies Dry Goods Co. v. Retherford, 195 Iowa, 635, 191 N.W. 794; Shipley v. Shipley, 187 Iowa, 1295, 175 N.W. 51.Although the statute does not authorize an action for separate maintenance without a divorce, this court has recognized the right of one spouse to bring such proceeding against the other. The basis upon which the right to obtain separate maintenance without a divorce is founded, may be ascertained in Graves v. Graves, 36 Iowa, 310, 14 Am.Rep. 525. There this court said, reading on pages 312 and 313:

" ‘ It is true, beyond controversy, that the great weight and number of the English authorities deny such jurisdiction. And it is, perhaps, also true that the number and possibly the preponderance of the American authorities are in accord with the English. But there are well-considered cases and authorities of great weight which affirm the jurisdiction. Judge Story says, of these latter, that ‘ there is so much good sense and reason in the doctrine that it might be wished it were generally adopted.’ * * * That a husband is bound, both in law and in equity, for the support and maintenance of his wife is a proposition hitherto and now undisputed. * * * Here then is a plain legal duty of the husband for the violation of which no adequate remedy, even with a multiplicity of suits, can be had, except in a court of equity. Upon the ground of avoiding a multiplicity of suits, or on the ground that no adequate remedy can be had at law, a court of equity may properly base its jurisdiction in such cases. And, under our law, we do not see, since the husband owes this obligation of maintenance to the wife, as well as to the public, why she may not, independent of any other ground, maintain this action against him.'"

Thus this court has continuously held that a suit for separate maintenance does not rest on the divorce statute, but is only maintainable in this state under the general powers of a court of equity to prevent a multiplicity of suits and to uphold a public policy.

The next question which confronts us then is, ‘ Can a judge of a court of equity in vacation order a writ of attachment to issue without bond in a suit for separate maintenance?’ Code, § 10479, pertaining to attachments in divorce cases, has no application to an attachment in a separate maintenance action because, as set out in this opinion, this court has held time and time against that an action for separate maintenance is not an action for divorce.

" It is a...