Howell v. Howell

McFarland, J. This is an appeal by defendant from an order of the superior court requiring him to pay to plaintiff one hundred dollars, per month from January 20, 1892, until the further order of the court.

On May 14, 1890, the parties were husband and wife; and on that day plaintiff commenced an action for divorce from defendant. She averred in her complaint, as ground for the divorce, desertion by the defendant; and she also averred that there were certain named minor children of the parties, and that there was certain community property in the territory of Wyoming worth about ten thousand dollars, and also certain personal property in California worth seven thousand one. hundred dollars, and certain described real property here belonging to the community. She prayed for a divorce, the custody of the children, and that the court [46]award to ber all the said community property, real and personal, in California. The defendant, who then lived in Wyoming territory, was served by publication and made default. The court entered a decree on September 11, 1890, in accordance with the prayer of the complaint. There was nothing in either the complaint or the judgment about alimony. By the judgment the property prayed for in the complaint was awarded to plaintiff, but it contained nothing more about property, money, or property rights of any kind. The judgment has never been appealed from or in any way disturbed.

On January 20, 1892 — more than fourteen months after the judgment — plaintiff filed a petition entitled in said divorce suit, in which, after alleging certain property and income of defendant, she averred that she was in indigent circumstances and unable to support herself and said minor children, and that “the sum of two hundred and fifty dollars is a reasonable sum per month to be allowed plaintiff to support herself, and support and educate her said minor children.” She then prays that, in addition to counsel fees, defendant “ pay to plaintiff such further sum as to this court may seem just for support of plaintiff and said minor children,” and that “ said alimony be made permanent.” The defendant demurred to the petition upon the ground, among others, of want of jurisdiction. The demurrer was overruled, and defendant answered. His answer was stricken out for reasons not necessary to be here noticed. The court made findings, reciting the history of the divorce, and declaring that defendant had certain property and income, that plaintiff had two minor children dependent upon her, and that she “has not separate property nor any property sufficient to maintain herself and said minor children.” Whereupon the court made an order “that defendant pay to plaintiff the sum of one hundred dollars per month on the twentieth day of each and every month, commencing on the twentieth day of January, 1892, and the defendant do continue to pay said sum to the plaintiff on the twentieth day of each and every