Dixon v. Dixon

CRAIG, J.

The parties in this proceeding intermarried in October, 1913, and still are 'husband and wife. They separated on or about June 23, 1918, and on August 14, 1919, the'husband commenced an action for divorce, wherein the wife filed an answer and cross-complaint, praying a decree dissolving the bonds of matrimony, and for attorneys’ fees and costs. The cause was tried, and an inter

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locutory decree of divorce was denied either party, but a minute order was made that the husband pay to the defendant and cross-complainant “alimony $40.00 a month until further order of court.” Such order was never entered in the form of a judgment, but the parties continued living apart, and monthly payments were made as directed to and including December, 1921. Some time after the trial Dixon commenced persuasive methods in an attempt to induce his wife to return to him, as a result of which, upon consideration of his entreaties, she finally consented, and on or about January 13, 1922, she rejoined him. The parties lived together until April 4, 1922, when they again separated, but payments of said allowance were not resumed, though the original order remains upon the minutes of the court.

On June 8, 1922, the respondent commenced this action against appellant, charging that he had treated her with extreme cruelty during her second attempt to live with him, and praying judgment for separate maintenance, and for moneys to defray alleged necessary medical expenses, and for attorneys’ fees and costs herein. Appellant answered, denying the allegations of her complaint, and affirmatively alleging the pendency of the divorce action and the order for alimony to be a bar to the subsequent suit. Order to show cause was issued, in response to which each of the parties appeared and testified, and appellant introduced the pleadings and orders of the first suit. Thereupon the trial court ordered that “the plea in abatement not proven, and disallows the same,” and directed that the defendant pay to the plaintiff pending trial the sum of fifteen dollars weekly, besides attorneys’ fees and costs.

The defendant appeals “from the judgment and order allowing alimony and attorneys’ fees,” contending that the decision and order of the lower court in the second suit are contrary to law and not supported-by sufficient evidence. The gist of appellant’s argument is that no findings or judgment were filed in the original action, and that the same is therefore still pending; that the cross-complaint stating grounds for divorce was sufficient to support a judgment for alimony or maintenance, with or without divorce. It is asserted that the right to separate