The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1875-11-27

will be taken as true; bui bis charges, 50 FAR as they
ted to injure the plaintiff, must lie proved or they
viii 20 for naught TIE defendant must prove tia;
the plaintiff Eas the wife Of another man, and that
be was himself the husband Of another woman on
the Ga day Of April, 1855, or his allegations 10 that
effect can have no weight as against the plaintiff.
There is no replication 70 sn answer under the
Practice Act Of Utah, and these allegations OF the
defendant are denied for the plaintiff By operation Of
law. Every material allegation OF the complaint,
when il is verified, not specifically controvertei by
the answer, shall for the purpose Of the action be
taken as true. The allegation Of new matter in the
answer, shall, on the trial, be deemed eontroverted
by the adverse party (Ctah Practice .4ef, sec
Go 1.-The intention o! the Code IS to adopt the
true and just rule that the defendant must either
deny the facts as alleged, OF confess and avoid them.
When new matter exists it must be stated in the
answer. New matter is that which, under the rules
Of evidence, the defendant must afhrmAtiyeiy estab-
fish. If the 0aus Of proof IS thrown upon the defend
ant, the matter to be proved by him IS new matter.
(PieTcy r. Sadin, 10 Cat. ~ The allegations
that the plaintiff had another husband, and the de-
fendant had another wife az the time Of the marriage
on the 9th day Of April, 1868, are allegations Of new
matter. and this new matter the law denies for the
plaintiff, and requires the defendant TO prove.
1t being admitted that the parties hereto intermar-
ried at the time and place stated in the complaint,
evidence is necessary 10 determine the following ques-
tons
l. Was the plaintiff, on April 9th, 1868, the wife
Of James L. Deel
>. Was the defendant, at Kirkland, in the State of
Ohio, on the 10Th day Of January, 1884, lawfully
married to Mary Ann Angell. and was the said Mary
Ann his wife on April 9th, 1858?
3. If these questions shall be determined against
the defendant, it will then become an important ques-
ton whether the defendant has treated the plaintiff
unkindly, cruelty, inhumanly, or has deserted or
failed to support her; which, in his answer, the de-
fendant denies. If, however, the FIRST two questions,
or either of them, shall be determined against the
plaintiff; or, in other words, If 1t shall appear that
the parties knowingly entered into q polygamous or
bigamous marriage, this Court will not grant the
I;y,roo ,~ouoI 8 D"k sIo Comet , % rnA arpnSfta
to presume what the evidence will be. The witnesses
necessary to maintain or to defeat this action are lia-
bic to be widely scattered in Utah, in Ohio, or else
where; and the litigation is liable to be protracted
and expensive. Can the Court lawfully require the
defendant to pay an allowance for ad interim alimony
and for the expenses of prosecuting the actiOn2
The Utah statute is silent upon this question, but
that silence does not answer it in the negative.
The allowance for ad interim alimony does not de-
pend wholly upon the statute, but upon the practice
of the court as it existed before the statute (Norih
u. North, l Barb. Oh. r. 24l.) In Cast U. Cast, ad
interim alimony was allowed by the unanimous deci-
sion of the Supreme Court of Utah.
"This question seems plain on principle. First,
the authority to make the order belongs to the Court
under the law imported by our forefathers to this
country; secondly, if this were not so, still it springs
up necessarily out Of the legal relation of the parties,
and the condition Of facts appearing Of record before
the Court to which the application is made. And if
any one principle of our Jurisprudence is more
worthy OF commentator than another, 1t Is, that
the tribunals may always be pressed to action when
ever the case comes within established legal rule,
though not within any precedent" e Bishop on
Marriage and Divorce, sec. 1885, Chancellor Kent
says: 81 am entirely convinced from my own judi
cial experience, that such a discretion is properly
confided to the Courts" Il Kent Com. SO, nOte.)
"The power to decree alimony falls within the gen.
eral powers of a court of equity, and exists indie
pendently of statutory authority" (Gakiand ..
GaLldnd, SO Cal, 1868
Is the case at bar, as it now stands in Court. a
proper case for the exercise of this authority
RiShnn tho oaca nf n rorno mi a
man and afterwards finding that he has already
another wife living, and so the marriage is void.
She may indeed treat it as void without n judicial
sentences; yet suppose, that, instead of this, she
brings her suit against the man to have it decreed
null. Her property is practically in his handle,
though in point of law she retain the title. But
since she has elected to let the Court settle the ques-
ton of nullity in q direct proceeding for this pur-
pose, she has the same claim upon the Court to have
appropriated to her so much of this property as her
necessities demand while the suit is going on, as
though she alleged the marriage to be valid, and
sought its dissolution for a cause occurring subse-
quently to the ~nuptials. In like manner, where the
man seeks to establish the nullity of his marriage ON
the allegation that the woman has a former husband
living, she may have alimony pending the suit, and
money to Defend q Bishop on Mar. and DiU.
sec. 402.) FAnd this is so, even though it is alleged
that the marriage was brought about by the fraudu-
lent practices of the supposed wife, and though the
costs of the suit may ultimately be awarded against
her." I'd. note q
In a case in New York, in which the supposed wife
alleged marriage and cohabitation, the supposed hus-
band denied the marriage but did not deny the CO.
habitaton; and thereupon Vice-Chancellor McCoun
made the allowance Of temporary alimony. and
money to carry on the suit. I'd. sec. 404) In the
case at bar the defendant both admits the marriage
and fails to deny the cohabitation.
"Where upon an application for temporary ali
and an allowance for expenses, the facts undis-
puted are such as that from them a presumption
arises that the parties were married, so that the
Affirmative rests upon the defendent to repel that pre-
sumption, the Court has jurisdiction and power to
grant the application, although marriage, in fact, is
denied" (Brinkley y. Brinkley, so ". Y, 1874
"The dd interim alimony and money to sustain
the expenses are given, not as Of strict right in the
wife, but of sound discretion in the Court. Yet the
is q judicial, not an arbitrary one. And
q case is brought within the principles recog-
nized as emitting the wife to the allowance, the
allowance follows pretty much as of course, without
inquiry into the merits of the case. If, for example,
she is plaintiff, it is no objection that the husband
denies her charges under OATH" q Bishop on
Marriage and Dirorce, sec. 406.)
Owing to the peculiar notoriety of the parties, and
to the Importance of this case in the jurisprudence of
Utah, it has been deemed desirable to show, even at
the risk of being elementary, that this case comes
clearly within the principles universally recognized
rs giving q woman who is a party to a suit for
divorce, a just claim for alimony and sustenance;
the one being for the ~defraying of the ordinary ex-
of the wife in the matter of living; the other
being for the same purpose in respect to the matter
Of the suit" ID sec. 387)
1t now becomes important to inquire what princi-
must guide the Court in fixing the amount Of
The allowance in this case.
''As a general proposition. the fund out of which
he wife is entitled to her alimony is the income of
he husband, from whatever source derived or de-
I'd. sec. 447.)
''The ordinary rule of temporary alimony is to
lllow the wife about one-ffth of the joint income.
: + This is regarded as a fair medium, though
he proportion will vary = = according to cir
,umstances. When the necessities and claims of the
wife have been large, one-fourth has been allotted;
Ind Sir John Nickoll, in one case = = granted
he wife $50 per year out of an income of e140
= On the other hand, in different and peculiar
the wife has been obliged to accept
Is small a proportion as one-eighth.' I'd. sec.
1907 "Alimony pendente lite is usually made, by
he terms of the order itself, to commence from the
eturn of the citation. This is the true rule. 3 =
it may be made to commence earlier or later
ID. sec. 424; Burr u. Burr, 7 Hill 207.
The plaintiff ALLEGES in her COMPLAINT 60 that the