Reed v. Reed

• Decision Date: 09 January 1905
• Court: Mississippi Supreme Court
• Parties: ALONZO L. REED v. AMELIA REED

37 So. 642

85 Miss. 126

ALONZO L. REED v. AMELIA REED

Supreme Court of Mississippi

January 9, 1905

November 1904

FROM the chancery court of Tunica county, HON. CAREY C. MOODY Chancellor.

The appellee, Amelia Reed, was complainant, and the appellant Alonzo L. Reed, was defendant in the court below.

Bill by Amelia Reed against Alonzo L. Reed for divorce and alimony. Defendant answered the bill under oath, denying the marriage and alleging that plaintiff at the time of her marriage to defendant was married to another and had obtained no divorce. The answer also denied the grounds for divorce alleged in the bill. On an application for alimony pendente lite, defendant requested that the hearing be continued until he could take testimony, which was denied, whereupon defendant offered evidence to show complainant's marriage to one Brooks before her pretended marriage to defendant, which evidence was excluded; and from a decree allowing alimony pendente lite, defendant appealed to the supreme court.

Reversed and remanded.

J. T. Lowe, for the appellant.

Marriage is the very foundation of the obligation of the husband to support the wife, and where the fact of marriage is denied by the husband's answer, preliminary proof of the same must be made. McFarland v. McFarland, 64 Miss. 449, and authorities therein cited. Temporary alimony cannot be properly allowed where the validity of the marriage is called in question and remains undetermined. Keiffer v. Keiffer, 4 Colo. App., 506 (s.c., 36 P. 621); Wait v. Wait, 7 Leg. Gaz., 382; York v. York, 34 Iowa 530; Shaw v. Shaw, 92 Ib., 722; Freeman v. Freeman, 49 N. J. (4 Dick.), 102; Brinkley v. Brinkley, 50 N.Y. 184; Humphreys v. Humphreys, 49 How. Pr., 140; Kinsey v. Kinsey, 7 Daly, 460; McFarlane v. McFarlane, 51 Iowa 565.

An application for alimony pendente lite should not be granted where there is uncontroverted evidence that the applicant has never been the wife of the defendant. Collins v. Collins, 71 N.Y. 269; vide also Blinks v. Blinks, 25 N. Y. Sup., 768.

[The reporter finds no brief for appellee in the record.]

OPINION

WHITFIELD, C. J.

The learned chancellor seems to have held that under no circumstances could evidence be heard against allowing alimony pendente lite. The general rule is, of course, that such alimony will be allowed, and the merits not inquired into. But it is equally well settled that where the answer denies there ever was a marriage, and...