Blythe v. Blythe

Cole, J.

l. Practice : oFsaSSm1 tasaos”f°' plaintiff. ^ The first error complained of is the appointment of a guardian ad litem for the plaintiff. The record entry states simply, “ that the insanity of the plaintiff being suggested, the court thereupon appointed” a guardian ad litem. £kjg ^ag aj| £|ie s2j0VV-Jng ma¿¡e {¡he Pis *268 trict Court, the correctness of the order might well bo doubted. But the transcript contains the affidavits of two persons, as to the present insanity of plaintiff, and for aught we know, the District Court may have had before it the evidence that plaintiff had, since the bringing of the suit, been duly and regularly found insane by proper proceedings. The transcript does not purport to contain the proofs, nor all the papers offered in the cause. Under such circumstances the presumption of regular and proper action by the District Court obtains. The appellant must show error affirmatively. This he has not done, so far as the order for a guardian ad litem is concerned.

2. coktinuamoe: on . appointment of artmrdian ad mem. As to the continuance, we need only remark, that, since the court had but just appoined a guardian ad litem, it was a proper exercise of judicial discretion to . A .V continue the cause, m order to afford an oppor- . ' i tumty lor that preparation necessary to a lair trial of the cause. It was not granted, so far as appears, for the fault or negligence of plaintiff. If the court deemed the continuance proper, in order to thereby the more nearly obtain substantial justice, it might properly order it. Rev. § 3009.

8. Amtom: change of decree. The order allowing alimony to plaintiff was erroneous. The relation of husband and wife, does not subsist between the plaintiff and defendant. That re- # , , _ , _ . , lation must exist either de jure or de facto m order to justify an order for alimony. Bish. on Mar. and Div. §§ 570, 579. But there is a more potent reason still, in this case; and it is that there is no suggestion or averment in the petition of any change of circumstances or condition of the parties since the former decree. Although the court granting a divorce has, by force of our statute (Rev. § 2537), power to make changes in the decree in respect to property and children, yet this power certainly ought not to be exercised, only upon such change of cir *269 cumstances as demand the change in the decree. That is to say, the original decree is conclusive upon the parties as to their then circumstances; and the power to make changes in the decree is not a power to grant a new trial or retry the same case, but only to adapt the decree to the new or changed circumstances of the parties. In view of the facts averred in the answer and verified by defendant, it is difficult to conceive of a principle upon which plaintiff’s right to alimony could be made to rest, even upon final hearing. We do not deem it necessary now to determine whether the plaintiff, not having obtained any decree as to alimony, upon-the granting of the divorce, could be entitled, under any circumstances, to alimony now; that is to say, we do not decide whether the court is authorized to make an entire new decree as to alimony, or only to change a decree as to alimony when such has been made at the time of the decree for divorce.

For the error as to temporary alimony, the judgment of the District Court is

Reversed.