Ellis v. Ellis , 13 Neb. 91 ( 1882 )

Cobb, J.

There can be no doubt of the power of the conrt to make the order or supplemental decree appealed from.

Section 27 of chap. 25, Comp. Stab, p. 255, is in the following words: “After a decree for alimony, or other allowance for the wife and children, or either of them, and also after a decree for the appointment of trustees to receive and hold any property for the use of the wife or children as before provided, the court may, from time to time, on the petition of either of the parties, revise and alter such decree respecting the amount of such alimony or allowance, or the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any decree respecting any of the said matters which such court might-have made in the original suit.”

This was a revision and alteration of the original decree respecting the payment of alimony, and is within the language of the statute. In decreeing the conveyance of the land, the court exceeded its powers under the statute; yet, had the defendant seen fit to make the conveyance accord-' ing to the decree, it would have been a full discharge thereof. He, not having done so, it was within- the power of the court, upon proper notice, to revise and alter such decree in respect to the payment of such alimony or allowanee, this supplemental or revised decree being one which “such court might have made in the original suit.”

Upon the rendition of the original decree, except for some special purposes, the parties were out of court. In this case a petition was necessary, and doubtless it was necessary that a summons in the nature of a subpoena in chancery should also issue and be served on the defendant the same as in the original case, and such summons could no more be legally served on the person who acted as attorney for the defendant in the former suit than could the original or first summons have been so served. But it was opiite competent for the defendant, after service of the informal notice of the application of the plaintiff upon the attorney who had represented him in the original action, to waive all irregularities as well in the form of the notice or summons as in the manner of its service. This we think he has done. It appears from the record that upon the making of the final order or supplemental decree appealed from the defendant appeared by attorney and made application for an extension of time to forty days in which to prepare a bill of exceptions in the case. Porter v. C. & N. W. R. R., 1 Neb., 15. Such bill of exceptions was not necessary for the purpose of testing the jurisdiction of the court or the sufficiency of the service of the notice. These questions would arise as well upon the record without a bill of exceptions.'

The appellant complains that there was not sufficient evidence before the court to sustain the judgment. As I view the case, all of the facts upon which the original judgment was rendered wore still before the court when the order or modification of the judgment Avas made. The same state of facts which would justify the court hr decreeing the conveyance of real estate Avorth'fifteen hundred dollars, if the court had the power to decree such eonveyancc in the case before it, might, and for anything made to appear in this case did, justify it in rendering a personal judgment for tbat sum. The original judgment is not appealed from. In matters of divorce and alimony a large discretion is necessarily lodged in the district court. There is no abuse of such discretion shown to exist in this case; on the contrary, I think that justice has been done.

The judgment of the district court is therefore affirmed.

Judgment affirmed.