The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1895-05-28

hearing Of the suit for separate al
lowance for herself and children. The
demurrer set up that the court had no
authority to grant alimony except as
incident to proceedings in divorce. His
honor sustained the demurrer and as
the question raised is quite an i'm
portant one the Herald gives the
opinion in full as follows:
The Ruling of the Chief Justice.
Thscplaintift alleges substantially that
shs&e nd the defendant intermarried IN
june 1892; that there has been born 10
said plaintiff, as issue of said marriage,
four children, who are all under aSe, the
oldest being about 10 years; mat ae-
PENDANT in violation of his duties as nus
band, is living separate and apart from
said plaintiff wholly without cause or
excuse and refuses and neglects TO sup
port her and her said children IN man
ner Su table and proper either 10 their
condition IN life or his means ana 1oi-
Plaintiff further alleges that said de-
ilndant is a man Of large fortune, worm
MT less than SOC, 0J0; that plalntlII IS
wholly dependent upon him for her means
of support.
defendant he required to make answer
and make full disclosure of his means
and property and sources OF revenue ana
income of whatever nature ana kllld, ana
that pending the hearing he be required
10 nav plaintiff a reasonable amount for
expenses of bringing this SUIT ana con-
ductlng the same, including attorney 5
fees and for temporary aIlnony, ana
that upon the final hearing OF the case
be ordered, adjudged and decleed py
ie court that the defendant pay 10 pam
If IS permanent e1limony, not less imam
$500 u month for the support of her
self and children SO long as oeLen9di IiI
continues to des It her in violation OF MS
duties o. husband.
TO tins complaint defendant interposed
"a general demurrer TO the erect ma stlIt
complaint did not state facts Sallclent
90 constitute a cause OF action In olner
lords, that this court as a court OF
chancery has no authority 10 grant all
Inony except as incident to a proceeding
The statutes of Utah territory on the
s4nlect of alimony, section 26u6, COM
piIcd laws, reads as follows: w hen
a divorce is decreed the court shall make
such order in relation to the children ana
property of the parties and the malIileh-
ance OF the wife and such portion of the
children as may be awarded 10 ner, as
may be just and equitable. ana N uie
subsequent portion OF the section, lhat
when il shall appear TO the court at d
future time that it would be LOT lhe
interest OF the parties concerned mat
change should be Effected IN regard 10
the former disposition of the children or
disposition of the property the court snail
ha Ssf.power to make such change as VIII
be XSlciYe to the best interests OF all
part concerned
TsaS defendant contends that there is no
peTer given by this statute for the court
10 grant alimony, either temporary or
permanent, to the wife, except as incl
dent to an action for divorce
1t can hardly be urged, nor Is II ser
tously-urged, BY counsel for plaintiff, that
This statute does give authority TO the
court to grant alinlony except IN cases
of divorce and as incident thereto; out
plaintiff does urge and insist that a court
OF chancery has jurisdiction TO grant an
mo1y for the maintenance OF the VIE
when compelled to leave her husbano, or
Is deserted by him, independent OF any
statute The defendant urges that TINS
court has no jurisdiction OF the premises
aside from what is given ny the statute
The question is not a new one, in the
courts of America. 1t has been the SUD
ject of considerable HuEatlon 1or the
last fifty years. III some statutes OF the
Union. namely: Mississippi, Soutn caro-
liRas Virginia, Kentuc Ky, COLORADO, Ne
braEaa and California, it has been MAIN
t2Wied that The jurisdiction exists IN
YgIity independent Oh any statute 10
grant temporary allmony lor me csuFt iT.It
and maintenance OF the wife VINO, Tor just
cause has left her husband or mas peen
abandoned by MIN; While in Massachu-
sets, New York, MicIIgan' Arhtii sd
probably some others, the doctrine mas
been denied.
different states L feel at liberty TO take
such q view of the matter as is best con-
sistent with the law as am able TO
understand il 1t is generally concedeu
nv al authorities that no such Jurisdlc-
ton in a court of chancery existed under
the English system; nor did II exist Iii tIle
ecclesiastical courts where jurisdiction i'll
divorces were alone obtained Alimony
was usually awarded IN these courts
when a divorce was granted for certain
causes from bed and beard ana not
where a divorce was got from The bonds
In this country we have 70 ecclesiasti-
cal courts, and il was early decided that
we had no courts that has Jurls-
diction of divorces. The subject matter
naver belonged to a court OF chancery
rtss.o the common law courts; therefore,
tn Y5e early history OF our states a.
vofces We're granted by the legislature
After the revolution, and but one or Two
cases prior thereto. jurisdiction IN oil
vorce for certain causes was given by
statute to the courts of chancery, but
Fl was somewhat different from the rule
that prevailed in England. For. as befofe /
stated, alimony was given pendent lite,
ana when a decree was granted from ped
and board and not otherWlce IN me
ecclesiastical courts.
done away with divorce from bed and |
board but authorize granting of divorces |
by courts of chancery from the bond of |
Ynatrimony, and as incident thereto the |
court is authorized TO grant -aiimony. |
This is q purely statutory proceeding |
and the court has jurisdiction to act in |
the premises without such statutory au- |
thority. This being admitted, the courts, |
I believe or at least the most of them, /
hive decided, thaa as alimony was al /
ways Incl dent to divorce there can be no /
good reason Tor assuming Inat courts OF [
chancery had Jurisdiction to give alimony |
in o separate action.
If it is necessary, they held, to have a
special statute TO authorize court TO |
grant a divorce. II must In the nature of |
things be absolutely necessary TO have /
a statute authorizing the granting of ali
monY This reasoning is met by the /
courts so holding, to have jurisdiction,
with the statement that inaSmuch as II IS
obligatory Tor the husband to support his
wife there must be some means of COM
nc l
might lie just as strongly urged on
the part of those who claiJa that the
statute is necessary in the premises that
a woman should not be compelled to be
ne wife OF man who is cruel, and that
Is fact of there being no statute 70 au-
Srize divorces, courts of chancery of
&essity would have to take jurisdiction
fonceded by ali the authorities that this
court of chancery could not do.
on this subject Mr.. Bishop, who is prob
ably the leading authority on this queS-
ton of divorce and separation, says:
ssRy the English doctrine, followed in
most of Our states, alimony has no de-
reudent existence. Only as an appendage
10 some other proceeding-as, commonly,
for 4 divorce is il known in any depart
even ecclesiastical, being authorized to
grant it when it is the only relief
sought.
The same author says, after naming the
states that sustain the doctrine that ali
mon may be mainta ned W thout vorce,
against this highly respectable array of
authorities the doctrine most prevailing
E51en given by a statute And the reason
+I,oT ENGLAND whence wa derive 0IIr