Edmund Andrews v. Elizabeth Andrews, 1 Dallam 375

SHELBY, Justice. The appellant assigns the following reasons for the sustaining his motion: 1. Because there is no such right known to our laws as that prayed for, in relation to alimony.

On this point we differ entirely with appellant’s counsel and believe it is a practice sanctioned by all the courts of chancery jurisdiction in the civilized world; for if such was not the case, a cruel man might expel his wife from his house and starve her to death whilst she was seeking redress; therefore, in all cases against guardians where rights of minors are concerned, and who are presumed to have no means of support, as well as in cases of divorce, the court will make interlocutory decrees for the minor and the wife, both predicated upon the same principle, to wit, the helplessness of the complainant; and if a doubt existed on the subject, I conceive the Legislature of our government has put the question to rest in the act entitled “An act amending the judiciary laws, etc.,” approved December 18, 1837,

section 2, volume 2, page 95. It is said that “the district courts shall have power to hear and determine all suits or actions arising between husband and wife for divorce, and may decree divorces as well from the bonds of matrimony as from bed and board, or for a separate maintenance.” This act, it is believed, apart from the rules of equity, which we believe should govern in all such cases, would authorize a decree for a separate maintenance pendente lite.

The second reason assigned for reversal of judgment below is, if such right exists at all, the answer charges adultery in the plaintiff, by which it is forfeited.

This reason we consider equally inefficacious with the foregoing one, and will apply to the merits on the final hearing, and not on interlocutory decree, as we view this clearly to be, and such as the district court sitting as a court of equity was bound to make, if he was satisfied in his own conscience that it was just and coisistent with the rules of equity, without regard to any other evidence than that contained in the petition and answer; and that he was not bound as a chancellor to call the intervention of a jury unless to satisfy his own conscience, which must have been easy or he would not have proceeded to pronounce herein; and we conceive all the proceedings below as correct and warranted by the rules of equity, and that therefore the said reasons be overruled and the appeal dismissed; as be believe no appeal can be taken from an interlocutory decree, which we consider this to be clearly.

Dismissed.