Ex parte Perkins

Baldwin, J. delivered the opinion of the Court Cope, J. concurring.

The main question in this case has relation to the power of the District Court to order the applicant, plaintiff in a certain suit for a divorce below; to pay a sum of money for expenses incurred by the defendant below, the wife, in an action for divorce.

It is unnecessary to consider the facts in regard to the propriety of this charge; for, as the Court is one of general jurisdiction, it is not admissible for the defendant in a proceeding of this sort to question the mere regularity of its proceedings. We do not sit as an appellate Court upon matters of this sort, but as a Court of original jurisdiction, invested with a special jurisdiction to discharge the petitioner when no legal cause of detention exists against him. In the regular course of judicial proceedings before a Court of general jurisdiction, the petitioner, having notice of the proceedings, has been ordered by the judgment of the Court to pay a certain sum of money; and in default of obedience to the order, has been committed for contempt. The only question, therefore, which he can make, as affecting the legality of his commitment, involves the 'power of the Court to make the order. And upon this question we have no doubt. The main argument of his counsel is, that this [64]sum adjudged to be paid by him is a debt within the meaning of the constitutional provision; and that he cannot be imprisoned for the refusal to pay this debt, except by proof of fraud, since this would be a violation of the provision of the Constitution which secures the citizen against imprisonment for- debt, except for fraud. But it is well answered that this is not a debt within the meaning of this article. The husband is bound to support the wife, yet this duty is an imperfect obligation which is not technically a debt. He does not owe her any specific amount of money, but he owes a duty to her which may be enforced by the order of a Court, compelling him to pay her money. So alimony, temporary or permanent, may be decreed by the Court, and this may be done, not in one gross sum or at one time only, but in different sums and at different times, at the discretion of the Court. Nor does this power exhaust itself by a mere provision for the actual necessary support of the wife during the litigation. But it is equally within the power of the Court to decree the- payment of the legal expenses of the suit. Legal expenses may well be included in this provision, and this includes the fees to attorneys. This is not a debt, as has been decided by the Supreme Court of Connecticut in Lyon v. Lyon, 21 Conn. 185.