The herald., 1894-03-15
ALIMONY Is NOT A DEBT
so A. A. KENDRICK GETS HIS
HORSE BACK,
Aud Can Now Feed 1t Oats-The Find q
ing of Judgs Uiark in tho
Case OF Kendrick vs..
j. o. Cline.

Judge CLARK in rather a lengthy opin-
ion yesterday ordered that Judgment be
entered for the plaintiff in the case OF
A. A. Kendrick vs. J. G. Cline.
On April 8, 1898, judgment was en-.
tered granting the plaintiff q decree of
divorce from defendant upon the grounds
of extreme cruelty and habitual intem-
perance, the case being that Of Roberta
d. KendriCk plaintiff. VS.. A. A. Ken
drick defendant. and was tried in de-
partment three.
The decree awarded to the plaintiff the
custody os the minor child OF the marri-
age, and then proceeded as follows: "It
is further ordered, sdiudgtd and de.
creed that she have Judgment for the
sum of 800 as Rlimony to be paid at
once, and the further sum OF $25 per
month until the further order of the
court, to be paid at the end OF each and
every month, said months commencing
May l, 1893; and that she have her costs
about this case made and expended
amounting to $17.75, and that said judg-
mont he enforced by execution the same
a5 judgments In other oases." Upon this
judgment an execution was issued and
placed In the hands OF the defendant,
the sheriff Of the county, and a horse,
the property Of the defendant and plain
tiff in the former action, was levied
upon. Then the last suit wae brought
against Cline to replevin the animal,
the contention being that the horse was
exempt from execution. There was
evidence that the plaintiff was team
ster and that the horse seized was used
by him as such, and this left but little
doubt that it would be exempt from
seizure to secure payment OF a debt.
The court details that the position OF
the defendant was that the amount due
under judgment in Kendrick va. Ken
drick was not debt, and that execution
issued should be construed as an order
from the court to ita officer to enforce
its decree for alimnny. Were il debt
merely, and rot a duty, it's enforcement
could not be effected by imprisonment
of the offending husbsnd, and the gen
eral exemption laws would apply; and
this, of course, was not the law.
To enforce the duty on the part
of the husba any appropriate PROCESS
might be adopted. It might be enforced
by contempt proceedings, and imprison.
ment, or by execution. Il might be Rd-
mitted that the execution might be
made to run against the body OF the
husband or against property that would
ordinarily be exempt. Here, however,
the question was not whether the court
had the power to direct property that
would be exempt from seizure for debt
to be taken upon an execution for ali
mony, but the question was; Did II do
SOP This question, il would seem,
should be answered in the negative.
The Judgment WAS that it "be enforced
BY execution the same as Judgments in
other cases." This surely meant that
the execution should run only against
such property as might be elezed upon
execution issued TO enforce judgments
generally.
When enforcing the payment of ali.
mony ths court would take into considers
tion the ability OF the husband to pay,
and to hold that when it ordered that its
decree for alimony be enforced by execu-
tion generally, that no property should
be exempt from seizure would lead to
dangerous results. II the court could in
this action go into the ability of the
plaintiff to pay alimony awarded
againet him, and decide that the horse
in question should be taken and applied
to that purpose then the justice of the
peace, from whom the case came on
appeal, would have power to do so, and
to 30 hold would give such justice juris.
diction in divorce proceedings. The
reasoning in the Illinois case Of Byers
vs.. Byers applied here. There, where
$4,000 was awarded as alimony, "and
that in default Of payment exc
cution issue therefor it was held
that, admitting that the court might
have made the Rlimony lien upon the
homestead or other property, it did not
do so; that it was but money judg-
ment and that execution issued thereon
could not be levied upon any property
which would not be subject to levy by
any other money creditor. The reason
being that 1.-The property equities Of the
parties should be settled in the divorce
suit where the chancellor had full view
OF the parties aud their circumstances" !"
Hence judgment should go In this
case for the plaintiff, and it was 30 or
dered.