Daniels v. Lindley

Rothrock, J. i. practice: amendment. I. The first question presented in the argument is that, as no notice of the amendment by which the attachment was procured was given to the defendant, Elwood Lindley, the court had no jurisdiction to order that the decree giving all the property to the wife should date back to the date of the attachment. It is a sufficient answer to this to say that there is no allegation in the [569] petition that notice of the amendment was not given. It is alleged that no notice of the attachment was given. Notice of the attachment is very different from notice of the filing of an amendment to the petition. Notice of the attachment was not necessary to be given. 2. divorce: taDspecüve:'8" crefitors! II. The other and more important question in the case is as to the power of the court, on entering the decree for alimony, to direct that it shall take effect from the date of the attachment, to the exclusion of an intervening judgment creditor. The plaintiff herein was not a party to that proceeding; he recovered his judgment on the same day, and but a short time after the attachment was levied. His lien on the property, by virtue of the judgment, attached between the levy of the attachment and the rendition of the decree for alimony. The Code, Sec. 2227, provides that a petition for divorce and alimony “ may be presented to the court or judge for the allowance of an order of attachment, and said court or judge may, by indorsement thereon, direct such attachment and the amount for which the same may issue ****** } and any property taken by virtue thereof shall be held to satisfy the judgment or decree of the court * * * . ” We do not think that the attachment provided by this section of the statute can affect the lien of a creditor whose judgment was obtained prior to the decree, or that the court, without rendering any judgment or decree for money, and ordering the sale of the attached property in satisfaction theroof, can simply, by its decree, invest the wife with all the husband’s property to the exclusion of the judgment creditor. The statute provides that the property shall be held to satisfy the judgment or decree of the court. It is not a fair construction to hold that, under this language, the whole of the husband’s real estate may be seized and passed over to the wife, to the exclusion of creditors. The claim of the wife for alimony is not in the nature of a debt; she is not the creditor of the husband; it is an equitable allowance made to her oiit of her husband’s estate, upon dissolution of the marriage relation, and should be based upon the value of the [570] estate, taking into consideration the debts of the husband. If the husband had made a voluntary conveyance of all his property to his wife, upon a separation, she could not hold it as against the plaintiff’s judgment, and we fail to see how this can be done because the property is in the custody of the law, upon an attachment procured by the wife in proceedings for divorce. In our judgment the ruling of the court below, in sustaining the demurrer, was erroneous and should be Reversed.