Birdzell v. Birdzell

Per Curiam,: This is an application for a rehearing, made by the defendant in error. We have carefully examined all the authorities presented, and are satisfied with the law as declared in this caso in 33 Kas. 433. The application will therefore be denied. Counsel for defendant in error allege that Birdzell has abandoned his wife without providing any support; that she is insane, and destitute; and that it is gross injustice that the husband should not be compelled to make some provision for her maintenance and comfort out of the money that came to him through his wife. Counsel also contend that independent of any statute, the district court, as a court of equity, should grant relief in the case. The petition filed in this case is in the form of an ordinary action for divorce and alimony under the provisions of the statute. (Civil Code, §§ 639-649.) We have not decided, and have not intended to decide, that the unquestioned duty of the husband to support his wife may not be enforced by a court of equity upon proper proceedings commenced therefor. If the petition heretofore filed be amended so as to show that Birdzell has abandoned his wife and separated himself from her without providing any sufficient support, and other facts are set forth showing that the wife has no adequate or sufficient remedy under the statute, [639] then a case will be presented as to the jurisdiction of the district court, as a court of equity, to grant salutary relief independent of the statute relating to divorce and alimony. When such a case is before us, it will be time enough for us to decide whether there is any remedy for such wrongs by way of an allowance for suitable maintenance and support out of the estate of the husband. Johnston, J., not sitting.