Deuprez v. Deuprez

Bryan, J., delivered the opinion of the Court. Heydenfeldt, J., concurred.

Elizabeth Deuprez having obtained a decree for a divorce against the appellant, Samuel Deuprez, and an amount fixed to be paid monthly for the maintenance and education of her child, as also a decree for one-half of the property acquired by herself and husband during their coverture, files her complaint against the appellants, setting up that Samuel Deuprez has pretended to convey the common property to Mary Ann Deuprez, in order to cheat and defraud the complainant. And she also prays that she may be adjudged her proper share in the distribution of the property, and that having a right to the possession of the property described in the complaint, she be adjudged restitution of the same. The jury having found for the plaintiff, a motion for a new trial was made, which was denied by the Court below, and this appeal is taken from the order denying the motion for a new trial.

The first point raised by the appellants, that Mary Ann Deuprez was not allowed, upon motion to that effect, the benefit of a separate trial, is not well taken. Section eight, of the “Act to regulate Proceedings in Civil Cases,” provides, that where the husband and wife are sued together, the wife may “ defend for her own right.” This can be done as well when sued jointly with her husband, as if the trial were separate; her defense, if a special one, could come in, in either case. The second point raised in the assignment of error,—which is, that the judgment of the District Court should not have been admitted in evidence, for the reason that it had exceeded its jurisdiction in giving judgment for two thousand dollars in a divorce case,—is also, in my opinion, not well taken. The Act of 1851, concerning divorces, (§ 7, p. 372, Comp. Laws,) provides that the Court may make any order for the support of the wife and the maintenance of the children, as may be just. This section of the Act invests the Court with a large discretion. Section one of the same Act, clothes the District Courts [389]with exclusive jurisdiction in granting divorces from bed and board, as well as from the bonds of matrimony; and section seven of the same Act, as has been seen, invests them with the discretion to make any order for the support of the wife and children which may be just. Instead of the District Court having no jurisdiction, in giving such a judgment, it is the only Court which, by our laws and Constitution, could have given any judgment whatever in the premises. The other assignment of error is without any force.