Opinion
No. 34944.
April 13, 1942.
1. HUSBAND AND WIFE.
Generally, a decree for temporary alimony and solicitor's fees cannot be entered, unless complainant seeks either a divorce or separate maintenance.
2. HUSBAND AND WIFE.
A wife's "petition for temporary alimony," alleging that she was without means for support and praying for general relief and rule to show cause why husband should not be required to pay reasonable amount for petitioner's support and maintenance, was susceptible of construction as bill for separate maintenance and hence not demurrable on ground that decree for temporary alimony cannot be entered unless plaintiff seeks divorce or separate maintenance (Code 1930, sec. 1420).
APPEAL from the chancery court of Covington county, HON. BEN STEVENS, Chancellor.
E.L. Dent, of Collins, for appellant.
It is settled in this state that a wife denied a support by her husband may bring her bill for alimony without seeking a divorce.
Verner v. Verner, 62 Miss. 260; McFarland v. McFarland, 64 Miss. 452, 1 So. 508; Scott v. Scott, 73 Miss. 580, 19 So. 589; Ross v. Ross, 89 Miss. 66, 42 So. 382; Johnston v. Johnston, 182 Miss. 1, 179 So. 853; Dewees v. Dewees, 55 Miss. 315.
See, also, Lang v. Lang et al., 70 W. Va. 205, 73 S.E. 716, 29 Ann. Cas. 1913d 1129, 38 L.R.A. (N.S.) 950; Stafford v. Stafford (Ala.), 74 So. 354; 1917D, L.R.A. 773; Tutwiler v. Tutwiler (Ala.), 87 So. 852; 30 C.J. 1086, par. 891; 17 Am. Jur. 410, par. 501; 17 Am. Jur. 420, par. 515.
W.U. Corley, of Collins, for appellee.
We have read with care the brief filed by counsel for appellant and noted the authorities cited with interest. These authorities cited by counsel deal with the question of the wife's right to sue for alimony independent of a bill for a divorce. We do not question that right at all. We grant that the decisions are uniform on the question of the right of a wife to sue for permanent alimony, without suing for a divorce, but that is not the question raised by this demurrer. It will be noted that the bill charges, "This is an urgent and necessitous case for temporary alimony," and in the prayer of the bill we find only these words, "That the court may hear the evidence and adjudge this an urgent and necessitous case requiring the defendant to pay temporary alimony and attorney's fee as the statute sets out in that regard."
No authorities are cited for the reason that we know of no case directly in point in Mississippi, or elsewhere for that matter, upholding or denying a wife the right to seek temporary alimony, or alimony pendente lite during a suit, that does not exist.
Appellant was complainant in the trial court. She filed what was denominated a "Petition for Temporary Alimony" setting up that she was without means for support and that "this is an urgent and necessitous case for temporary alimony." In said petition complainant prayed for general relief and that the defendant be required "to show cause, if any he can, why a reasonable amount should not be adjudged to be paid by the defendant for the support and maintenance of your petitioner."
Demurrer was sustained on the ground that a decree for temporary alimony and solicitors' fees cannot be entered save where complainant seeks either a divorce or separate maintenance. While such is the general rule, the demurrer should not have been sustained since it is evident that the petition, while inartificially drawn, is susceptible of construction and acceptance as a bill for separate maintenance. We are of the opinion that the learned chancellor should have treated and heard it as such upon the merits of its allegations. Code 1930, sec. 1420.
Reversed and remanded.