Wright v. Wright

• Decision Date: 01 January 1851
• Citation: 6 Tex. 29
• Parties: WRIGHT v. WRIGHT.
• Court: Texas Supreme Court

6 Tex. 29

WRIGHT

v.WRIGHT.

Supreme Court of Texas.

1851.

An execution cannot legally issue to enforce a judgment or decree which has been vacated or annulled.

Where alimony was decreed to the wife during the pendency of a suit for divorce, and the suit was dismissed after several installments of the alimony had fallen due and were unpaid: Held, That the dismissal of the suit for divorce annulled the decree for alimony, and that after such dismissal the decree furnished no basis for compulsory process to carry it into execution.

Where the husband is plaintiff in a suit for divorce, the court may refuse to hear the cause until the alimony due is paid; and where permanent alimony is given on separation a mensa et thoro application must be made in a reasonable time or the court will not enforce the payment of arrears; and where almony is payable annually the court will not, as a general rule, enforce arrears of more than one year.

Where the wife has a separate income, adequate to her maintenance, the husband is not liable for alimony either under the common or our statute law.

Where a suit for divorce was dismissed and the husband had failed to pay the alimony decreed to the wife during its pendency: Held, That the husband was not bound to pay the alimony, but was bound to pay the debts contracted during the pendency of the suit by the wife for her support and necessary expenses. (Note 5.)

Appeal from Victoria. In a former action between these parties for divorce, the appellant had been ordered to pay the appellee during the pendency of the suit for her separate support the sum of two hundred and fifty dollars annually, payable in quarterly installments. The suit was afterwards dismissed, and at the time of its dismissal three of the installments were unpaid. Some months subsequently executions were issued for their collection, and the appellant prayed for an injunction to restrain further proceedings on said executions. By the decree of the District Court the executions were ordered to be canceled; an injunction which had been issued to restrain proceedings under the order for alimony was dissolved, and an execution ordered to issue for the whole amount of alimony due and unpaid.I. N. Mitchell, for appellant, argued that an execution could not legally issue without a judgment, or order equivalent thereto, or to enforce one that had been vacated or annulled; and that the dismissal of the suit for divorce had vacated and annulled the decree for alimony; consequently execution could not issue on it.

J. W. Allen, for appellee. The court did not err in refusing the injunction, because the decree for alimony was final. It vested a right in the appellee the moment each several installment became due. It is true it was subject to be altered, amended, or rescinded by the court at any time during the pendency of the suit; but such alteration or rescission could not affect installments which had already become due.

Alimony is an allowance made by the court for the subsistence of the wife during the pendency of the suit. It is supposed to be necessary for her subsistence. She may use it or she may not. She may choose to support herself by her own labor; but this does not forfeit her right to the allowance suitable to her condition. It vests in her the moment it becomes due as effectually as the judgment of a court can vest a right. Suppose instead of letting it lay, secured by the judgment of the court, as in the present case, she had assigned each installment to pay for her support. Would not the assignment have been good and valid? and could not the assignee have had his execution even after the determination of the suit? Would not the various installments becoming due before her death, supposing she had died before the determination of the suit, have been assets in the hands of her administrator? If such would have been the law, what distinguishes this case in principle from those? Here the wife, relying on the validity of the order of court, contracts debts on a credit on the faith of it. Must those debts go unpaid? But we will put a stronger case; Will nothing short of the actual collection of the money make it her's? If anything short of that will suffice to vest the right in her, what is it? Surely nothing, according to the reason of the counsel. Does not the court perceive that such an interpretation would render the allowance of alimony nugatory; a mere “promise to the ear, to be broken to the hope?” Nothing would be necessary to render it entirely unfruitful but to file a...