Smith v. Smith , 51 S.C. 379 ( 1898 )

The opinion of the Court was delivered by

Mr. Justice Gary.

It will only be necessary to set forth one or two facts, which will be hereinafter stated, in addition to those contained in the order of his Honor, the presiding Judge, which will be incorporated in the report of the case. The following questions are raised by the exceptions: 1. Does the right exist in this State to grant suit money and alimony, pendente lite? 2. Can such order be granted at chambers? 3. Were there any allegations in the complaint or any facts stated in the affidayits, showing that the plaintiff was entitled to the order of injunction? 4. Should the order of injunction be set aside because of failure on the part of the Circuit Judge to require an undertaking on the part of the plaintiff? We will consider these questions in their regular order.

1 The first question will now be considered. As this is a novel question in our State, we will quote somewhat at length from the authorities. In vol. 2, page 92, Enc. of Eaw (new ed.), it is said: “Strictly speaking, alimony is allowed merely as incident to proceedings for legal separation or divorce; but in some jurisdictions, and by statute in many of the States, alimony is allowed as an independent right, proceedings for which are usually had in chancery courts.” The case of Rhame v. Rhame, 1 McC. Ch., 197, and others which it is not necessary to mention, show that, in this State, courts of equity, in the exercise of their general chancery powers, have assumed jurisdiction of alimony as an independent right, and not as merely incidental to an action for legal separation or divorce. In the same volume, page 100, it is said: “It was the universal practice of the ecclesiastical courts in England, and is now generally the practice in the United States, upon an application, by the wife, to the Court, in a divorce suit, to make an allowance for her support during the pendency of the suit, and for costs and expenses to enable her properly to carry it on, if she is without separate means, and the husband is able to support her, whether she be libellant or respondent, without a consideration of the merits of the case;” and on page 101 it is said: “Although alimony, pendente lite, should be allowed without an examination of the merits of the case, yet a. prima facie case must be shown in behalf of the wife.” In vol. 1, Enc. of PI. & Pr., page 430, it is stated: “Decrees for alimony are, and on principle should be, subject to change or modification as circumstances may require. Temporary alimony may be increased or diminished at any time during the pendency of the suit.” See, also, vol. 2, Enc. of Daw, pages 155 and 156, to the same effect. In vol. 1, Enc. of PI. & Pr., page 439, it is said: “A decree for alimony, by the great weight of authority, is not a debt, within the meaning of statutes or constitutions, which prohibit imprisonment for debt.” One of the modes of enforcing compliance of an order for alimony, pendente lite, is by an attachment for contempt. It thus appears that the order for alimony, pendente lite, is not a judgment for a debt, but is simply incidental to the action for permanent alimony. When the courts of equity in this State assumed jurisdiction of alimony, they also assumed jurisdiction of all the incidents necessary to the enforcement and enjoyment of such right; and, therefore, assumed jurisdiction of the right to grant suit money and alimony, pendente lite. The exceptions raising the first question are overruled.

2 We proceed to consider the second question. This question depends upon the nature of the order for alimony,pen-dente lite. We quote from the case of Prime v. Prime, 36 Fla., 676, reported in 34 L. R. A., 87, not for the purpose of committing this Court to the doctrine that it would have the right to grant alimony, pendente lite, in the first instance, but for the purpose of showing that such order is in its character administrative, and merely incidental to the action! for permanent alimony. Mr. Justice Riddon, delivering the opinion of the Court, says: “The appellant has not disputed our power to grant the alimony and suit money pending proceedings here; yet, as this question is a new and novel one, this being the first application of the kind ever addressed to this Court, and as there is conflict in the authorities, we have thought it best to give some expression of opinion and reference to the state of the law upon this subject. This Court under our Constitution has only appellate jurisdiction in cases in equity originating in the Circuit Court. The question which caused us some difficulty was whether the allowance of alimony, in this Court, would not be an exercise of original instead of appellate jurisdiction, and beyond our constitutional powers. In examining the question we ascertain that a number of appellate courts have granted alimony and suit money, while the case was pending in such courts on appeal. In many of these the question of the power to make the order was not discussed. The court assumed the power as a matter of course, and it seems no objection was made thereto. In other cases the relief has been refused upon the merits, the court assuming that it had jurisdiction and power to grant the relief, if a proper case had been presented, and in some cases the power is expressly asserted. (Then follows the citation of a number of authorities.) The question of the jurisdiction of an appellate court to grant the relief was expressly raised and decided in Goldsmith v. Goldsmith, 6 Mich., 285. The husband in that case objected to the allowance being made by the appellate court, upon the ground that the jurisdiction of such court only authorized it to review and pass upon the decree and proceedings appealed from. The court overruled the objection and held that it had power to award the alimony pending appellate proceedings. The fullest discussion of tlie subject we have seen is in Lake v. Lake, 17 Nev., 230. In that State the constitntional grant of jurisdiction to the Supreme Court, in so far as it affects the point under consideration, is identical in* terms with the section of our Constitution regulating the jurisdiction of this Court. An application for suit money was made in the Supreme Court and resisted on the ground that it would be an exercise of original jurisdiction. The court held otherwise and made an allowance for counsel fees and costs, and fortified its position by elaborate argument and citation of authorities. In that case the wife was defeated in the court below and was the appellant. The gist of the conclusion of tlie court is stated as follows: “The law gives appellant in this case the right to appeal from that part of the judgment disposing of the property, and accords to her every privilege granted to other litigants in this court. Upon her rests the burden of showing error in the court below. Among all the rights to which she is entitled, there is no one more important to her and the court than that of having the aid of counsel learned in the law and acquainted with her case. Without such aid, the court must perform the double and inconsistent functions of court and counsel, or she, with no knowledge of the principles or experience in the practice of the law, must cope with counsel of ability in a profession which, most of all, requires a familiarity with all knowledge, and, most of all, offers success to him who knows best how to put in practical use the knowledge he possesses. Without counsel, the statute of the State and the rules of the court cannot be complied with. Without them, the good order and well being of the court would be disturbed, and it would be deprived of one of the usual proper and necessary means of exercising its appellate jurisdiction.” As the order granted by his Honor, Judge Watts, was merely interlocutory, and incidental to the action for permanent alimony, there was no reason why he could not grant the same at chambers, under section 402 of the Code, and section 2247 of the Revised Statutes. The exceptions raising this question are overruled.

3 We proceed next to consider the third question. In vol. 1 Enc. of Pl. & Pr., page 442, it is stated, in speaking of the writ of injunction, that: “This writ may be granted by any equity court, in the exercise of its ordinary powers, but by a common law court, only under statute. Its use in protecting and securing the wife’s claim to alimony is to restrain any disposition by the husband of his property, which is likely or intended to impede or defeat such claim; and it is commonly issued on the petition and affidavit of the wife. This is done although no decree or award had been made; but there must be a proper showing that the property is in peril, the allegations in the petition being required to set out, not only the fears of the wife, but the facts on which they are grounded.” There are no allegations in the complaint, nor are there any facts stated in the affidavits submitted in this case, tending to show that the plaintiff’s claim is in danger of being defeated by plaintiff’s disposition or encumbrance of his property. So that whether the injunction was granted under the provisions of the Code, or by the Judge in the exercise of his general chancery powers, as incidental to the action for alimony, it cannot be sustained. The exceptions raising this question are, therefore, sustained.

4 Lastly we proceed to a consideration of the fourth question. Section 243 of the Code is as follows: “When no provision is made by statute as to security upon an injunction, the Court or Judge shall require a written undertaking, with or without sureties, to the effect that the plaintiff will pay to the party enjoined such damages, not exceeding an amount to be specified, as he may sustain by reason of the injunction, if the Court'shall finally decide that the plaintiff was not entitled thereto * * *” We do not understand that the Court, in Watson v. Bank, 5 S. C., 177, decided that the failure of a Judge to require a written undertaking upon granting an injunction did not render the order voidable, but that the failure to do so was not jurisdictional. But, be that as it may, the words of the section are plain and mandatory, and the order herein is in that respect erroneous, and to that extent must be set aside. The exceptions raising this question are sustained.

It is the judgment of this Court, that the order herein be modified in the particulars hereinbefore mentioned.

Mr. Justice Pope concurs in the result.