Dewees v. Dewees

Chalmers, J., delivered the opinion of the court. Daniel S. Dewees filed his bill for divorce from his wife, on the ground of desertion. The wife answered, denying the desertion, and alleging that she had been driven from the matrimonial domicile by her husband; that she had always been a dutiful and affectionate wife, and that she had ever been, and was then, anxious to return to a faithful discharge of her matrimonial duties, if permitted so to do. Converting her answer into a cross-bill, she charged that she was destitute of means, while her husband was comparatively wealthy; that he not only refused to support her, but had published a notice in the newspapers forbidding any person to sell goods to her upon his credit, in consequence of which she found it difficult to obtain a livelihood. She prayed for alimony pendente lite, and, upon final hearing, for a permanent allowance. She did not ask a divorce. After the proof was all in, demonstrating the falsity of the charge of desertion upon the part of the wife, and establishing the truth of the allegations of her answer and cross-bill, the chancellor made an order for the payment by the husband of alimony pendente lite, and of counsel fees. Thereupon the complainant dismissed his bill, but the chancellor inserted in the order granting the alimony and dismissing the [318] bill a direction that the cause should be retained for the purpose of enforcing payment of the alimony, and also for final decree on the cross-bill. At the succeeding term the decree was rendered, making permanent allowance for the support of the wife, in accordance with the prayer of the cross-bill, and the husband having failed to comply with any of these orders, he was ' subsequently attached for contempt. He therefore prosecuted this appeal. The principal error assigned is that the court had no right to retain the cause for any purpose after the dismissal of his bill by the complainant. There can be no doubt of the authority of the court to retain it, so far as was necessary to enforce compliance with its orders for the payment of counsel fees and alimony pendente lite. These the wife is entitled to, regardless of the result of the litigation, except in cases of extreme bad conduct on her part, and her rights in this respect cannot be defeated by a voluntary dismissal of the husband’s bill. We think it was proper also to retain the cross-bill for final hearing. The general equity rule is that the dismissal of the original bill carries with it the cross-bill; but, as said in Ladner v. Ogden, 31 Miss. 332, this result will not necessarily follow where the cross-bill is filed for relief separate and independent of the original bill, though touching the same property or growing out of the same subject-matter involved in the original bill. Thus, it was held in Wickliffe v. Clay, 1 Dana, 585, that where the complainant prayed for specific performance of a contract, and the defendant, by his answer, which was made a cross-bill, prayed a cancellation of it, the voluntary dismissal of the bill did not cany the cross-bill. While it may be often difficult to apply accurately the rule laid down by this court in Ladner v. Ogden, supra, and without undertaking to determine whether it found appropriate illustration in the Kentucky case, we think the case at bar falls fairly within it. The relief prayed by the wife, to wit, a support as wife, was wholly independent of the divorce asked by the husband. Having driven her from home, he .was bound [319] to accord it to her, whether she sought a divorce from him or resisted one sought by him. She could have asserted her rights in this respect by an independent proceeding, seeking that object only, and without asking for a divorce. Garland v. Garland, 50 Miss. 694. Nor these reasons, when the proof taken had established the truth of her statements, and the falsity of his, the chancellor properly, we think,, retained the cross-bill, after the complainant had dismissed the original bill, in order that he might .afford her this independent relief, to which in any event she was entitled. It was a matter eminently within his discretion, to be wisely exercised, so as to accomplish justice between the parties. If satisfied, as he doubtless was, that the complainant's object in dismissing his bill, after the long-protracted litigation instituted by himself, was to delay and postpone the just claim of the wife for a reasonable and permanent provision for her support, we think he was right in retaining the cross-bill, so that that provision should be at once made. Very great suffering and privation might have been imposed on her if this course had not been adopted. We think that the testimony fully sustained the allegations of the wife’s cross-bill. - The alimony allowed might well have been larger, but, no cross-appeal having been taken, we cannot notice the request made here to increase it. The case having been properly retained by the final decree in the court below, in so far as was necessary by further orders to enforce it, the wife will be entitled to move in that court for an allowance of counsel fees for defending this appeal. The final decree will be modified by giving and continuing the permanent alimony until the dissolution of the marriage by the death of either party, instead of “ during the natural life of the wife,” and, as thus modified, is affirmed.