Williams v. Williams

• Decision Date: 20 July 1945
• Docket Number: 31936.
• Citation: 19 N.W.2d 630,146 Neb. 383
• Parties: WILLIAMS v. WILLIAMS.
• Court: Nebraska Supreme Court

19 N.W.2d 630

146 Neb. 383

WILLIAMS v. WILLIAMS.

No. 31936.

Supreme Court of Nebraska

July 20, 1945

Syllabus by the Court.

1. A suit for divorce abates on the death of either party before final judgment, and is not subject to revivor.

2. When the marriage relation is extinguished by death prior to the time when the decree can go into effect, then the subject matter is gone, and the parties can never be divorced by operation of law.

3. In a divorce action, the property interests involved are merely incidental to the principal object of the suit. If the decree of divorce cannot take effect, matters incidental thereto do not take effect.

Mark J. Ryan, of So. Sioux City, for appellant.

George W. Leamer, of So. Sioux City, for appellee.

Heard before SIMMONS, C. J., PAINE, MESSMORE, YEAGER, and WENKE, JJ., and POLK, District Judge.

PAINE Justice.

This is a divorce action. The plaintiff in her petition charged the defendant with extreme cruelty. The defendant by answer denied the charge, and by cross-petition alleged that the plaintiff was guilty of extreme cruelty. The trial court found generally for the plaintiff, awarded her an absolute divorce and permanent alimony, and dismissed the defendant's cross-petition. Motion for a new trial was overruled November 8, 1944, and defendant appealed to this court.

The cause was argued by counsel and submitted to this court on June 5 1945, and on June 8, 1945, the defendant's death occurred, before a final decision and judgment in this court was rendered.

On June 9 1945, a special administrator of the defendant's estate was appointed, and he presents to this court a motion to revive the action in his name, suggesting the death of defendant and praying for an order of revivor as to the property rights and permanent alimony awarded to the plaintiff, and upon hearing that such rights be fixed and determined, and upon payment thereof that the plaintiff be decreed to have no further interest in, or claim upon, the estate of the defendant now deceased.

To this motion the plaintiff filed her answer, admitting that the defendant died June 8, 1945, while the cause of action was pending in this court and before any final decision had been entered, and admitted the appointment of a special administrator of the estate of defendant; denied that the alimony, as fixed and determined by the trial court constituted a judgment which was in full and complete settlement and determination of the property rights of the parties. Plaintiff further charged that under the laws of Nebraska a divorce action cannot be revived, but that it is abated upon the death of either party, and prayed that the motion for revivor be dismissed and the action abated.

The first question to be determined on this appeal is whether or not the action should be revived in the name of the special administrator, especially with reference to the property rights as between the parties.

Section 25-322, R.S.1943, provides that an action does not abate by the death of a party, if the cause of action survive. See In re Estate of Samson, 142 Neb. 556, 7 N.W.2d 60, 144 A.L.R 264.

The personal representative of the deceased urges the application of section 25-1402, R.S.1943, which provides in part: 'No action pending in any court shall abate by the death of either or both the parties thereto, except an action for libel, slander, malicious prosecution, assault, or assault and battery, * * * which shall abate by the death of the defendant.' In Sovereign Camp, W. O. W., v. Billings, 107 Neb. 218, 185 N.W. 426, 427, it is said: 'Though the statute cited, purporting to prevent the abatement of pending actions, be given a most liberal interpretation, it could not prevent an action in divorce from abating when death occurs at a time before a decree can become operative, for death would * * * destroy the subject-matter which forms the basis of the action.'

And on page 221 of 107 Neb., on page 427 of 185 N.W., this court said: 'During the entire pendency of that decree the marital relation continues. The decree cannot under the law take effect and dissolve the marriage until at the expiration of the six months' period. In order that a marriage status be dissolved by a decree of divorce, such status obviously must exist at the time of the taking effect of the decree. When the marriage relation is extinguished by death prior to the time when the decree can go into effect then the subject-matter, upon which the decree would otherwise have operated, is gone, and the parties to the suit manifestly can never be divorced by operation of law. The statute on abatement of actions, which provides that a pending action shall not abate by the death of a party, does not and cannot preserve the subject-matter of an action. A divorce action differs in character from every other. It is not based upon a claim for a money recovery, nor is it a proceeding for the establishment of property rights. Such other actions may ordinarily be as fully litigated, in favor of or against the estate of one of the parties, after the death of such party as before. There are salutary reasons why pending actions of that nature should not abate. But in a divorce action the money and property interests involved are only incidental to the principal object of the suit. Whether the object sought is a limited or an absolute divorce, the primary and underlying purpose of such action is a modification or dissolution of the marriage relation. The settlement of matters of permanent alimony and property rights is only the incidental means of carrying into effect the one ultimate object. Until the decree can become operative as a divorce, the provisions of the decree as to those incidental matters cannot go into effect.'

In the case of Westphalen v. Westphalen, 115 Neb. 217, 212 N.W. 429, this court held: 'A suit for divorce abates on the death of either party before final judgment, and is not subject to revivor.' On page 219 of 115 Neb., on page 430 of 212 N.W., this court said: 'In such a case, it is not the...