Poole v. Wilber
Before: Haynes
Synopsis
Annulment of Marriage — Alimony Pendente Lite — Determination of Issues —Review upon Appeal. —Upon the hearing of a motion for alimony pendente lite and counsel fees, in an action for the annulment of a marriage, the trial court cannot determine the issues raised by the pleadings, and the supreme court has no jurisdiction to determine them upon appeal from an order granting such motion, nor to determine the correctness of an order overruling a demurrer to the complaint.
Id.—Issue as to Subsequent Marriage — Allowance of Alimony.— Where the marriage is claimed to be a nullity, and is sought to be annulled on the ground of a previous marriage of the defendant with another person, but the defendant avers a subsequent marriage with the plaintiff after the disability was removed, and prays for alimony, upon appeal from an order allowing alimony to the defendant, it need not be considered whether the issue as to the subsequent marriage is sustained upon the hearing of the motion.
Id. — Alimony without Claim for Divorce — Cross-complaint of Wife. —Under section 137 of the Civil Code,, which provides that the wife in case of desertion may maintain an action for permanent support without applying for a divorce, and that the court may, in its discretion, require the husband to pay alimony during the pendency of the suit, and money necessary for the prosecution of the action, a wife who is sued for the annulment of a marriage may file a cross-complaint for relief under that provision.
Id.—Amount of Alimony—Discretion as to Allowance.—Upon a motion for an order granting alimony pendente lite and counsel fees to the defendant, where the affidavits used upon the hearing show that the only property belonging to the parties or to either of them is a house and lot, to the procurement of which both parties contributed, the title to which is in the defendant, and which is occupied by her, bat that it produces no income; that the defendant has no means of support, and that the plaintiff’s income is about $145 per month, — an order by the court that the plaintiff pay to the defendant $45 per month, and $100 counsel fees, is not an abuse of discretion.
Haynes, C. This appeal is from an order granting respondent alimony pendente lite and counsel fees, upon her motion for that purpose.
The complaint alleges a marriage with the defendant in 1881, that at the time of the marriage defendant had a husband living, from whom she had not been divorced, and on that ground plaintiff seeks to annul his said marriage.
Defendant’s answer admits her marriage to plaintiff and her former marriage, alleges that her marriage to plaintiff was in good faith, believing she had been divorced, that they lived together as husband and wife from tliat time until April, 1891, when plaintiff deserted her; and further, that a divorce was obtained by her former husband March 31, 1882, and alleges: “ That in the month of February, 1888, they removed to the city of San Diego, state of California, from which time they muvually consented to and did marry.” Defendant also filed a cross-complaint, praying that the said marriage be declared legal, and for alimony.
Demurrers to the answer and cross-complaint were interposed by plaintiff, which were overruled, and upon defendant’s motion, alimony, in the sum of forty-five dollars per month and one hundred dollars counsel fees, were ordered to be paid her by plaintiff.
A bill of exceptions was taken by plaintiff, setting out the pleadings and the affidavits of the parties for and against the motion. The affidavits are long, and except as to the former marriage of defendant and its ex[342]istence at the date of her marriage to appellant, are irreconcilably conflicting.
Appellant contends that his marriage to defendant was void, that mere living together does not constitute a marriage, and that proof of living together is not proof of marriage.
These questions are not before us. The superior court could not have determined them and entered a judgment in the case upon the affidavits used upon the hearing of the motion. To decide these questions would be to exercise an original jurisdiction this court does not possess.
By overruling plaintiff's demurrers, the court below has decided that there is an issue between the parties, and the correctness of that ruling cannot be considered on this appeal.
Appellant’s further contention, that where the marriage is a nullity alimony and court expenses cannot be allowed, is met by the issue raised as to a subsequent marriage after the disability was removed; and whether that issue is sustained by the affidavits used on the hearing of the motion we need not consider.
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