Peyre v. Peyre

Belcher, C. C. Plaintiff and defendant were husband and wife. Plaintiff commenced an action for divorce on the ground of defendant’s habitual intemperance. Defendant by her answer denied the charge made against her, and, as a separate defense, alleged that while she was sick, plaintiff, with intent to make her worse, compelled her to drink some mixture concocted by him, and that after she had taken it she became so ill that she was unable to leave her bed; “and while she was ill the plaintiff caused her to be removed to a hospital for inebriates, and had her imprisoned therein without her consent for the period of one week; that there was no reason or cause for the act of plaintiff, but that he did so to compel defendant to leave him, and he has forced her to leave and abandon her home and to seek the protection of friends.” It is then alleged that defendant has no means to defend the suit or on which to live, and that plaintiff is worth the sum of three thousand dollars. The prayer is for judgment in her favor, and that plaintiff be compelled to pay her alimony and counsel fees.

The cause was tried and findings filed, stating in effect that defendant had not been guilty of habitual or any intemperance whatever. Thereupon judgment was en[338]tered, denying the plaintiff’s prayer for a divorce, and requiring him to pay defendant “permanent alimony in the sum of twenty dollars per month, payable in advance on the first day of each and every month hereafter, beginning on the first day of April, A. D. 1886, and the further sum of twenty dollars attorney’s fees.”

From this judgment plaintiff appealed, and has brought the case here on the judgment roll. He now asks that that part of the judgment which awards alimony and counsel fees be reversed, on the ground that it is wholly unsupported by any findings of fact.

1. The judgment, in so far as it gives alimony, was evidently based upon the supposed authority of section 136 of the Civil Code, which reads as follows:—

“Though judgment of divorce is denied, the court may, in an action for divorce, provide for the maintenance of the wife and her children, or any of them, by the husband.”

That section was before the court for consideration in Hagle v. Iiagle, 68 Cal. 588, and 74 Cal. 608. In the former case the trial court found, among other things, that while there was no sufficient cause for a divorce, the husband’s conduct toward his wife was cold, harsh, and disagreeable, making it unpleasant for her to live with him; that the marriage was an unhappy one from the beginning; that there was no love between the parties, and no probability that they would ever live together again as husband and wife; and that under the circumstances as shown twenty-five dollars per month was a reasonable sum to be provided by the husband for the maintenance of the wife. Judgment was accordingly entered denying a divorce, and requiring the husband, until further order of the court, to pay to his wife for her maintenance the sum of twenty-five dollars per month. And this judgment was affirmed on appeal. In the last case it was held that the courts of this state have no authority to grant a divorce a mensa et thoro,