Wilson v. Wilson , 49 Iowa 544 ( 1878 )

Rothrock, Ch. J.

1. divorce: action to set aside decree: alimony. This record presents the question whether, in this proceeding to set aside and vacate a decree of divorce, it is within the power of the court to require the defendant to pay to plaintiff a sum of 'money to enable her to prosecute the action.

The Code, § 2226, authorizes such an order to be made in actions for divorce, and, under section 2233, it is authorized in proceedings to annul illegal marriages. This action is neither an action for divorce nor to annul a marriage. The decree of divorce which it is sought to vacate and set aside is prima facie binding upon the parties, and until, upon a hearing, it appears that it should be set aside for fraud or want of jurisdiction, the marriage relation which is essential to support orders of this kind does not appear to exist. “Alimony is a right which results from the marital relation, and the fact of marriage between the parties must be admitted or proved before there can be a decree for it, even pendente lite. ” York v. York, 34 Iowa, 530; Bishop on Marriage and Divorce, § 570, and cases cited.

The ease of Whetstone v. Whetstone, 31 Iowa, 276, relied upon by counsel for appellee, was an action for divorce by the wife against the husband. The answer set up a decree of divorce obtained in another county, at the suit of the husband. The replication averred that said decree was fraudulent. An allowance of one hundred dollars was made, to enable the plaintiff to prosecute her suit. That was an action for divorce. This is an action the primary object of which is to vacate a decree of divorce.

In Graves v. Graves, 36 Iowa, 310, also relied upon by appellee, it does not ap>pear that any order for the payment of money was made pending the action, and in Whitcomb v. Whitcomb, 46 Iowa, 437, although an order was made for temporary alimony pending the action, the question as to the power of the court to make such order was not presented to nor passed upon by this court.

• It is urged that this order was properly made, because it was shown that there was no jurisdiction of the person of the defendant in the divorce proceeding. It is true it is averred that no personal notice of the action was given, but it .does not a23pear that service was not made in some other manner, as by publication.

We are not disposed, U230n the record here presented, to enter upon a discussion of the effect of service by publication,-nor as to how far the domicile of the parties at the time of the alleged adultery and desertion affects the question of jurisdiction. It will be ample time to present these questions after they have been fully presented in the court below. What we now determine is that there was no authority to order the payment of money to carry on the suit, in the face of a decree of divorce which seems to be valid.

Be VERSED.