Vert v. Vert

• Decision Date: 15 March 1893
• Citation: 54 N.W. 655,3 S.D. 619
• Parties: VERT v. VERT.
• Court: South Dakota Supreme Court

3 S.D. 619

54 N.W. 655

VERT

v.VERT.

Supreme Court of South Dakota.

March 15, 1893.

Syllabus by the Court.

1.This court will not review an order of the circuit court refusing to vacate an appealable order theretofore made by such court, and which it had jurisdiction to make.

2.To review such order would be, in effect, to pass upon the merits of the first order, and the time for an appeal from and review of the first order cannot be thus extended.

3.To justify a court in modifying its former judgment as to allowance of alimony, it should be satisfied that it is passing upon a different state of facts from those already adjudicated upon; but what degree of change is essential to constitute a different state of facts must in general be addressed to the judicial discretion and judgment of the trial court, the inquiry being whether sufficient cause has intervened since its former judgment to authorize or require the court, applying equitable rules and principles, to change the allowance.

Appeal from circuit court, Hughes county; H. G. Fuller, Judge.

Action by Edmund J. Vert against May H. Vert for divorce.There was judgment for defendant on her cross complaint for divorce, and her motion to increase her alimony, and set aside an order reducing her alimony, was denied, and she appeals.Affirmed.A. B. Melville, for appellant.C. G. Hartley, for respondent.

KELLAM, J.

In 1891, appellant commenced an action against respondent for separate maintenance.While such action was pending, respondent began an action in the same court against appellant for divorce.These actions were consolidated, and appellant's pleadings so amended as to ask for a divorce from respondent.Upon the trial a judgment of divorce was entered in favor of appellant, and against respondent, and by the judgment of the court $25 was ordered to be paid monthly by respondent to appellant for her support.Upon the 20th day of April, 1892, on motion of respondent, and upon his affidavit purporting to justly exhibit his financial condition, and upon counter affidavits on the part of appellant, the court made an order reducing such alimony to $15 per month, with leave to appellant to apply for a modification if respondent's circumstances should subsequently improve.To the making of this order appellant objected, both upon the merits and on the ground that the court had no authority to change or modify the alimony as fixed in the judgment, except upon a showing of a material change in the circumstances of respondent.On the 6th day of September following, appellant moved the court for an order increasing her alimony in this case from $15 per month to $25 per month, and setting aside the order of April 20, 1892, which temporarily reduced the alimony from $25 per month to $15 per month.This motion was supported and resisted by affidavits.The motion was denied, and this appeal is brought to review such decision.

It is contended by appellant that the motion should have been granted, for the reason that the order of April 20th, reducing the alimony, was made without authority, because it was not shown that respondent's circumstances had changed for the worse since the rendition of the judgment which fixed the alimony at $25.We have no means of examining this question.The record is entirely silent as to respondent's condition at the time of the judgment, but it was shown that he duly paid the monthly installments for December, 1891, and January, February, and March, 1892.That during these months he had been teaching school at $35 per month; that in April he was out of employment, and unable to obtain it; that he was obliged to support their...