Eisenring v. Superior Court

SHAW, J.

Prohibition. In an action for divorce brought by Charles Eisenring against his wife, petitioner herein, the court, upon application therefor by the husband, made an order requiring the wife, at a time specified therein, to pay the husband suit money and alimony

pendente Ute.

She refused to comply with the order; whereupon she was cited to appear and show cause why she should not be adjudged guilty of contempt.

The contention of petitioner is that this order is void, and hence the court had no jurisdiction to proceed against her as for contempt for failure to comply therewith. We are in full accord with this contention.

Coneededly authority to make such order finds no support at common law; hence, if authority therefor exists, it must be by virtue of some statutory provision. Section 137 of the Civil Code provides that “when an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself and her children, or to prosecute or defend the action.” Clearly the power of the court under this provision is restricted in the exercise thereof to the wife, and no similar provision is made in favor of the husband. To our minds, this section measures the power of the court in the matter of allowing suit money and alimony

pendente lite;

and, as said in

Hagert

v. Templeton, 18 N. D. 525, [25 L. R. A. (N. S.) 234, 123 N. W. 283], “was intended to be exclusive and to embrace the entire subject matter of the allowance of alimony

pendente Ute.”

In

Groth

v.

Groth,

69 Ill. App. 68, it is said: “If alimony from a wife to a husband is a proper thing upon circumstances, legislation is necessary to authorize it. . . . The statute gives her—not him—alimony. To give it to him is not to administer existing, but to make new, law. ’' To like effect is

Greene

v.

Greene,