Scott v. Scott

To authorize a dismissal of an action for divorce or to annul a marriage, brought by a husband, because of a failure of plaintiff to comply with an order for the payment of temporary alimony, such order must have been served on plaintiff personally.

Appeal from circuit court, Lawrence county. Hon. A. J. Plowman, Judge. Action to annul a marriage contract. Defendant had judgment of dismissal, and plaintiff appeals. The facts are stated in the opinion. It is not contempt of court to fail to pay alimony where one neither has nor can obtain it, and where he has not causelessly either put it out of his hands or failed to receive it. Wight-man v. Wightman, 45 111. 167. Service of the order upon the attorneys is insufficient. § 5337, Comp. Laws; Johnson v. Superior Court, 63 Cal. 578; Hennessey v. Nicol, 38 Pac. 649. If the husband is plaintiff, and either will not or cannot provide his wife with the funds with which to properly defend herself, the court may either suspend or dismiss the action. 2 Bishop, M. D. & S. §§ 981, 1095, Purcell v. Purcell, 3 Edwards Chap. 194; Peel v. Peel, 50 la. 521; Winter v. Superior Ct., 70 Cal, 295; Thayer v. Thayer, 9 R. I. 380; Casteel v. Casteel, 38 Ark. 477. Service of copy of an order which the party refuses to obey need not be had on him if he was in court when it was made. Ex parte Cottrell, 59 Cal. 417 See also, Pitts v. Davidson, 37 N. Y. 235; DeBemer v. Drew, 57 Barb. 446; Beach v. Beach, 6 Dak. 371; Petrie v. Petrie, 40 111. 334. The appellate court will not consider matters for review unless they were brought distinctly before the court below. Gaines v. White, 2 S. D. 410, 50 N. W. 901; McLaughlin v. Wheeler, 1 S. D. 497, 47 N. W. 816.