| Show Youl irV young I 1 dc iq isio 1 1 11 n of 0 r ef J utica david P locc givetz fri iri the thira third dis dig strict driel court satt salt lahe lake city ay y 10 1875 ina ann an ti ellia elka young 1 by bk her vex 11 ext t friend j george B R maxwell plaintiff nim ta J brigham g toung young defend defendant an J on tho iho 26 th day of february iash lash laaff an order was made in this cause directing the deren defendant lant to pay to the plaintiff as alimony ftc ife fife file ite the sum of being at the rate of per month from the commencement m men of odthe the suit also to pay her per month mouth subsequently during the of the suit and a aa attorneys fees to thu attorneys of the plaintiff it appears that under said order and subsequent proceedings the attorneys fees feed and of abinion alimony F haye have been beeh paid A rule upon the defendant to show cause why he should not be compelled by attachment to further com eom comply y with baid bald said taid order has been granted to io which the defendant has answered and the plaint plaintiff lir lil now new moves for an attachment tach ment and the defendant moves to discharge the rule adf Adi of the rule 1 aclid upon three several ground thu first that the coult has tion of the action the decision of the supreme court of the Teri tori territory llory in the case cae ca e of cast cat vs cast and the overruling of the demurrer to the complaint in this cau ciu clu b seem seena to coil cone iuga luge jUgA ude that question in this court for this tins case any agitation re of that question should be in the supreme court the second ground of defense is that an appeal from irom the order now sought to be enforced has been tak en to the tho supreme court if there were acro any ria reasonable ground for holding that under the practice act such an appeal was maintainable I 1 would most gladly act upon it and thus hope to obtain the opinion of the supreme court upon the tho order in question guestion but it seems too plain for doubt that no appeal lies from such an interlocutory order and that it cannot bainy admissible construction be ein eln embraced braced in any one of the provisions of section of the practice act nett which dennes dellen cases caseb I 1 think therefore that the attempted proceedings in appeal are aie inoperative and nugatory there remain remains for consideration the further ground urged in argument that upon the pleadings and records such a state of facts j ls s disclosed d la as shows it to be inequitable to re require guire the payment of or ad interim alimony hIl kii mony the plaintiff in her complaint alleges that she intermarried inter married with the defendant ou the ath day of bf april ims 1868 and sets up facts af 0 negligence 11 enbe and desertion which constitute s ikuto statutory ory grounds for divorce dis the defendant in his answer makes a qualified denial of the marriage martlage and alleges by way of avoidance that at the time of such marriage the plaint plaintiff lim lIT was the law lul wife of james L dee who ia is still living and from whom she has never been divorced that the defendant was lawfully married on the aoth both day of january 1834 to mary marv mark ann angell who then became and still is his lawful wile wife he further alleges in terms that thai the marriage with the plaintiff was a plural marria marriage gex entered into according to tile doctrine lne and customs of the church of latter day saints the complaint and answer is each upon oath anait and it appears from the record al well as from the statement of couil coull counsel sel sei in argument that the order for alleion and ex expenses wa Ava upon the complaint coral aint and answer alone without any other evidence or whatever it is ther gene general doctrine ot the courts in divorce alvoree ili lil vorce voree that before temporary alimony allino n y can proper properly y be awarded the marriage must be admitted by the part parties les leg or established by proofs ad bishop on aidi aldi div I 1 in tho the very deiy recent case cage of york vs 84 31 iowa lowa 53 53 it is said alimony ia Is a right that results from the marital relation and the fact of marriage between the parties must be admitted or proved before there can be a decree for it even evell pen fenden dence dente fe zole ute if some exceptional causes to this rule exist they will vill be found to t proceed upon facts faces and circumstances having no analogy to the present case lc it 1 is s alboan acce acee accepted ted doctrine that alimony biente lite ute cannot be claimed as a matter of df right but that its allowance rests resta in iu the round sound le legal discretion of iu jones vs jone 4 Chancellor walworth aid enid it id is not a matter of right tinder all till circumstances for the wire wife who hasi lim commenced a suit for fora a divorce or tora fora separation to require the court dourt to direct an n al lowance to be paid to her by the defendant for the purpose of defraying the tho expenses of the suit nor jor is ls it a matter of right that she should be allowed her ad interim alimony in all cases eases and ad interim alimony was refused because there appeared no probability that the plaintiff ought to buc aeed in tho the case 2 barb narb ch rep bep 1140 iii in worden vf worden tiie lite vice chancellor said if thu tho answer be true the complainant has no just cause of complaint it is not a matter of or course lu in every case whatever er may be the complexion of it to make an order for temporary alini alimony ony and adin ad in teim alimony was refused ou on the ground that it did not appear from all ali thae that was before the court tuat that the complainant had lind a meritorious came caun of action 3 edwrds oh ch rep it is also aiso conceded th it the order for temporary alimony when made remains subject to the control of the court during the of the cause cause the fhe pre pro present ent sent case upon the record ia is iu in brief nat the plaintiff alleges a marriage and adequate sta sra statutory grounds for devoice the defend defendant ant aut concedes a murr murt marriage fage lage but alleges facts as new nw matter in an fn avo avoidance idane e and defence which clearly show the marriage to be bigamous or polygamous to these new facts alleged there ia is no denial dental now how then does the ease stand upon such sueh pa pleadings ea dings it seems to be supposed that such new matter in the answer is to be deema d ss es contro averted by force of the thu statute but this is a applied to an interlocutory interlocutory proceeding eding the he section of the practice act declares that every material allegation of or the complaint when it is v verified erli not specifically controvert ed by the answer hhall phail for or the pur pose of the action be taken as true rhe the allegation of new now mutter iu in the answer shall on the tri tzi trial albe be deemed controvert ed by the adverse party thus thua tile the new now mat ter of the answer ig Is to be deemed decint d controvert ed only on the trial the statute not pres prescribing bribing th character in which the new matter is toj toi be regarded for the other pur poses of the action as is done in the same section in reference to the allegations of the complaint the of new tu matter atter therefore in im the answer for pur poses of ot the action other than the trial must have their ord ordinary luary legal effect and thab that is to regard them as true unless actually con trover ted and such appears to be the character attributed to the answer in interlocutory proceedings by the tha supreme court of cail Call california fomia romia under a statute which Is identical with the section of our practice act as quoted above burnett murnett vs whitesides Whites ides idea 13 cal was an appeal from an order dissolving an injunction the case having been heard upon complaint and answer alone the answer denied the equity of the complaint and set up affirmative matter in avoidance and the court says bays the answer of the defendants is as much proof of the defendants light as the complaint of the plaintiff plain tift tilt is evidence di ance of his right and the order dissolving the injunction was affirmed Delger deiger D 1 elger eiger vs johnson 44 cal cai a very late case was also an appeal from an order dissolving an injunction which had been heard U upon 11 i complaint au and aud d annive answer r alone the p being verified the answer set uil up naw new affirmative i matter in defenso defense which the cour court t says say a if true would justify the court in irl dissolving the in function 11 1 1 and n reference to the answer the ourt court bays says eft ent ft ift was wits held in falki n burg eil VIL ts 1 luey lucy mey 85 35 cal 52 and many other cases ases in an this court that when defendant the th moves on the complaint and atis aris answer to dissolve I 1 an injunction the unger answer will be treated for att all the purposes oaths of the motion as ao an affidavit 1 and the injunction having been dissolved upon the new mat berlof the thel answer the ibe order was wha by the supreme court the record of thia w a 4 therefore in view of the pro ions sinus of or the section sebulon of the tho practice act and the authorities just cited does davs disclose for the purpose of the present inquiry the fact that the alleged marriage was a bigamous ous or polygamous marriage if sueh such a marriage was ernt entered ered ened into ignorantly by tha 9 and through the fraud of ot the defendant equity will open its iti it dours doura for her relief iyub but upon the case caso as it stands it Is i not in the judgment of the court according to the principles of equity and good cons conf ciance to enforce the tho payment of ad interim alimony fit it appears from the record that the alleged marriage mar nar riago was celebrated in this city that the plaintiff 11 aad and de defendant both reide in this cl city ity it cannot therefore be a difficult or expensive duty of the plaintiff to place upon ille the record a confute tion or some explanation ft of the u exampled and most extra ordinary allegations made if any just explanation exist exists A and the court believes that sueh such explanation Is due to the common principles of equity and public justice before proceeding pr further in lik the direction sought it would bould be strange indeed if ir upon uch such a state of facts by any rule of or pleading or of law and extenuated by any evidence it could be imposed as a duty u upon P on a court of or equity to direct or enforce the payment of ali all alimony mony MODY and thus bestow the apparent if nol not indeed the real sanction of or the law upon a prat tico tice which is hotl hoti bo tiit tilt lt to the civilization of the age and aud which the penal statute stat of the land laud v violt sit hit with condign punishment ment mend the motion for an attachment is denied and tile the rule discharged cli cil arged |
