The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1891-08-15
vs.. EDCERTON.
Judge Hunts Decision Holding That
the Plaintiff Has no Cause
for Action.
DIR. DoGge Says His Wife Put
Concentrated Lye In His
Bath.
At Another Time, He Says, She Threw
Hot Water and soup on
Him.

AAOt vvnuUF INV Sup Ou
Him.
Judge Hunts opinion in the cnse of Kate
ID. Edgerton VS.. i. d. Edgerton has been
condensed by an attorney 80 those who are
not familiar with law may learn Just what
has been decided. Mrs. Hyperion brought
a suit in the district court OF this county for
maintenance. The plaintiff sets forth mar
riaRe, acquisition Of property, desertion,
alleged fraudulent decree of divorce, and
finally prays for 100000 for her mainte-
nance and support and that of her son.
There is also a motion for 800 for the back
support of the child, for 800 per month for
future support Of the child. $1,000 for her
attorneys and $1,000 to procure her testi-
mony. The objections are raised by de-
murrer consisting of three points: First.
misjoinder OF causes of action; second, an
other suit pending; and third the statute of
limitations. As to the first ground,
the court says the propositions involved in
the other points will be decisive. As to that
portion of plaintiffs motion which relates
to money for the child, the court says: l
am constrained to hold that she cannot
COme luLO ILLS COuEU ulu ODLAlu Lu6 Tell0I
prayed for. There is a decree of divorce,
regular and valid, Of record in Yellowstone
county, in which 1T is provided that she
shall have the sole charge, control and GUS
tody Of Erastus Ralph Edgerton until the
further order of the court. There is there
fore a valid decree Of divorce awarding the
child to plaintiff. st does not seem to me
that the statute has given any authority to
any court other than the district court Of
Yellowstone county to hear the application
of the plaintiff for support money for their
minor child.'' II have found no cases,
where an application for the maintenance
of a minor child, after the parents have
been divorced under a decree made in pur-
suRnce of q statute like ours. has been made
out of the cou,t wherein the decree was
entered" Numerous cases cited, quoted
from and distinguished.)
The next question considered is the appli-
cation of the plaintiff herself for the sum
of $1,000 0O. Will such an action lie under
the laws of Montana at all, and if 80, will
it stand independent of an action for di-
vorce? The statute grants no power to the
court to make an order until a divore shall
be decreed, except an order of alimony pen
dents lite. The whole frame work of the
section concerning alimony is based upon
the existing relation of husband and wife.
Once more the court reaffirms its views in
the case of Edgerton vs.. Edgerton trans
ferred this to court from the Fifth judicial.
district, wherein it is held that the plain
tiff herein is a divorced woman to whom
defendant is under no obligation whatever,
and from whom she is absolutely freed by
n competent judicial decree. such being
the case she stands as a stranger suing
n under no legal obligation to maintain
her, for the sum of 500, 600 as maintenance.
! am clearly of the opinion that the exist
ence of the marriage relation between
plaintiff n defendant is vitality essential
to permit her to maintain this action. Her
counse contend that the Billings decree is
void under the facts pleaded by her. The
position is somewhat illogical. She seeks in
the Jefferson county action already decided
to set aside & Judgment and expunge from
the records a decree regular on its face; in
this action she asks this court not to yield
to the Yellowstone decree the amount of
~ elt W! ! n she herself has paid to 1 ly
her Jefferson county action. The court
cannot take any step which in any way fails
to attach full faith and credit to the Bill
inps decree of divorce.
The court then says: "But even assum-
ing for the purpose of this suit, that she
never was legally divorced, there is still the
further question OF whether a wife can sue
for alimony without suing for a divorce.
Indeed, if | had the right under the law, l
should reserve this question for the con-
sideration OF the supreme court. But to
Ek0So VhO ouSO Ia q poolOloAA ~ hCOul0U Ao
opinion of the supreme court, / proceed to
hold that a district court of this state has
no jurisdiction over the subject of alimony
or maintenance, except as an incident to a
proceeding for divorce" There is no indie
pendent jurisdiction in our courts sitting
alimony. The whole subject of divorce is
confined by the strict limitations of the
statutes. The court quoting from Bishop
on Marriage. Divorce, ETC., tersely says:
that tho rsason for the doctrine most pre-
vailing among us is that III England
whence We derive our laws, neither
the equity tribunals nor any other had jur-
lsaiction when this country was settled"
These reflections and words being n repeti-
tlon of similar ones written in 1850 by the
years OF study and research into the reason
and philosophy of the law, are of unusual
Importance in counterbalancing a contrary
opinion of judges and in guiding the court
to q sound conclusion. Moreover in sever
al decisions heretofore rendered in this
that courts should be limited in the inter-
probation OF their powers rs such powers
are conferred expressly by tho statute. 1t
cannot be denied that the jurisdiction of
our chancery courts, if not derived from
England, emanates from the legislature.
incidental questions including al
imony. not having been subjects of
equitable jurisdiction in England, it
cannot be logically argued that when the
legislature conferred the power upon our
district court to sit in chancery upon di-
vorce and alimony that any general princi-
pies of equitable Jurisprudence attached to
the subject of divorce and alimony.
These conclusions seem to be inevitable
from the consideration of the promises,
and conform to the best reasoned authori-
ties. Getting numerous authorities). ZAP
piled to the complaint of Mrs. Edgerton,
the law of tho Massachusetts case holds
that, although it may be distasteful to her
to institute a suit for divorce. yet unless
she does she cannot maintain her action for
maintenance. The legislature alone has
the power to say that she can, and until
they do the court must follow the law AZ it
is. 1t follows that the demurrer must be
sustained upon the ground that there is no
cause of action stated, and there being no
cause of action, her motions for suit money.
counsel fees and allowances must each and
all BIO denied. This denial was not on the
basis of the statute Of limitation or any
technical misioinder of action, but purely,
solely and entirely on the grounds that