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Nixon v. Wright

Nixon v. Wright, 109 N.W. 274 (Mich. 1906)
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Court
Michigan Supreme Court · State Highest Courts
Decided
October 29, 1906
Docket
No. 26
Judges
Blair, Grant, Hooker, Montgomery, Ostrander
Citations
109 N.W. 274146 Mich. 2311906 Mich. LEXIS 890
Disposition
Reversed, and no new trial .ordered.
Headnotes
Divorce — Alimony—Award—Enforcement—Action at Law. A provision for alimony in a decree for divorce, being subject, at any time, to modification by the court which made it (section 8641, 3 Comp. Laws), and the court having full power to enforce it, is not such a judgment for money»that an action at law can be maintained upon it.
Summary
Error to Eaton; Smith, J. Debt by Margaret Nixon against John L. Wright for the amount of a decree of alimony. There was judgment for plaintiff, and defendant brings error.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Hooker

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Hooker, J.

The complainant’s decree for divorce, made on December 30, 1895, contained a provision in her favor for $500, payable on or before October 1,1896. In December, 1905, an action at law was brought upon this decree. The defendant’s counsel demurred to the declaration upon the ground that an action at law cannot be maintained upon a decree for permanent' .alimony. The learned circuit judge overruled the demurrer, and rendered judgment for the plaintiff, from which defendant has appealed.

If it be conceded that an action at law will lie upon any decree in equity, which is for an ascertained and specific amount, and nothing more, it need not follow that an action will lie upon a decree for alimony, where, as in this State, the decree is subject to modification by the court which made it, at any time. See 3 Comp. Laws, §

*232 8641. See Jordan v. Westerman, 62 Mich. 170 ; Perkins v. Perkins, 10 Mich. 425 , and cases cited; Reynolds v. Reynolds, 115 Mich. 378 ; Moross v. Moross, 129 Mich. 27 ; Smith v. Smith, 139 Mich. 133 ; Creyts v. Creyts, 143 Mich. 375 ; Cole v. Cole, 144 Mich. 346 . By the statute cited the legislature has given to the court of chancery the power to conserve the interests of the parties to divorce cases, by altering decrees regarding the wife’s support. A decree for alimony is not such an unalterable, definite, and fixed judgment for money—a debt—as will make an adjudication in bankruptcy a discharge. Many courts hold that it is not such an one as may be assigned. 1 It would be anomalous to sustain the authority of a court of law to deprive the court of chancery of the opportunity of executing its statutory power, or, on the other hand, to sustain a jurisdiction of a court of law, in cases where its judgment would be practically nullified by subsequent orders of a court of equity, in a collateral proceeding. The weight of authority denies the jurisdiction asserted in this case. See opinion of Kent, C. J., in Post v. Neafie, 3 Caines (N. Y.), 34; Allen v. Allen, 100 Mass. 373 ; Knapp v. Knapp, 134 Mass. 353 ; Barber v. Barber, 2 Pin. (Wis.) 297; Barber v. Barber, 21 How. (U. S.) 582; Kempster v. Evans, 81 Wis. 247 (15 L. R. A. 391), and cases cited.

The judgment is reversed, with costs of both courts. There is no occasion for a new trial.

Grant, Blair, Montgomery, and Ostrander, JJ., concurred.

See Fournier v. Glutton, post, 298.—Reporter.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 19 cases

View all citing references →
1908: 21911: 11924: 11928: 11932: 11934: 11935: 11940: 11941: 11943: 11944: 11945: 21951: 11965: 11971: 11977: 11980: 119082026peak 1908 · 2

Relies on it most ⓘ

  1. Corley v. Corley261 N.W.2d 65 (Mich. Ct. App. 1977)
  2. Hagen v. Hagen238 P.2d 747 (Or. 1951)
  3. Toth v. Toth217 N.W. 913 (Mich. 1928)
  4. Wellman v. Wellman9 N.W.2d 579 (Mich. 1943)
  5. Cogswell v. Cogswell167 P.2d 324 (Or. 1945)
  6. Talbot v. Talbot297 N.W.2d 896 (Mich. Ct. App. 1980)

Most recent

  1. Talbot v. Talbot297 N.W.2d 896 (Mich. Ct. App. 1980)
  2. Corley v. Corley261 N.W.2d 65 (Mich. Ct. App. 1977)
  3. Kavanagh v. Kavanagh186 N.W.2d 870 (Mich. Ct. App. 1971)
  4. Growe v. Growe138 N.W.2d 537 (Mich. Ct. App. 1965)
  5. Hagen v. Hagen238 P.2d 747 (Or. 1951)
  6. Cogswell v. Cogswell167 P.2d 324 (Or. 1945)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 10

DepthCaseCited by
Knapp v. Knapp, 134 Mass. 353 (1883) 50
Jordan v. Westerman, 28 N.W. 826 (Mich. 1886) 48
Allen v. Allen, 100 Mass. 373 (1868) 38
Creyts v. Creyts, 106 N.W. 1111 (Mich. 1906) 30
Moross v. Moross, 87 N.W. 1035 (Mich. 1901) 22
Smith v. Smith, 102 N.W. 631 (Mich. 1905) 22
Kempster v. Evans, 15 L.R.A. 391 (Wis. 1892) 14
Reynolds v. Reynolds, 73 N.W. 425 (Mich. 1897) 11
Perkins v. Perkins, 10 Mich. 425 (1862) 10
Cole v. Cole, 108 N.W. 74 (Mich. 1906) 3

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