Page:Harvard Law Review Volume 4.djvu/45

29 DEFECTIVE ALIMONY DECREES, 29 If upon cruelty alone being alleged Mrs. Roe has a right to $1,200 a year in alimony, then every pauper's wife, every poor washerwoman or ragpicker, has a right to ask for $1,200 a year as soon as cruelty in the husband is alleged and (apparently) proved in a mere divorce suit. " The alleged marriage and faculty of the defendant, that is, his ability to pay such sums as may be decreed, must be admitted or proved before alimony can be awarded. (Bishop on M. & D., Vol. 2, Sec. 496) ". . .p. 250. " The amount of property owned by the defendant was a material averment in the bill, and material in the bearing of the question as to alimony. ... It is a well-established doctrine that the facts upon which a decree is based must appear somewhere in the record." ^ Thus the right to alimony and the jurisdiction of the court to determine it is founded upon the husband's alleged 2}qX.y to pay it — his ability to support a wife. It depends upon either his accumulated means, his income, or his capacity to earn, as alleged. Unless these exist to the extent at least of $1,200 a year, the court has no right to grant that amount of alimony; 2 and the jurisdiction of the court, the power to exercise that right, the power to hear and determine, depends upon whether there is something to hear and something to determine ; i. e.y whether there is a suit for $1,200; not only a suit for simple divorce, but a suit for that alimony, which must consist of written allegations (combined with those purely for divorce), that the husband's wealth, income, or earning ability is at least $1,200 a year.^ 1 Becker v. Becker, 15 111. App. (Bradwell), p. 249. 2 Park V. Park, 80 N. Y. 160 : " It does not appear that the judgment (for alimony) exceeded the demands of the complaint (for divorce and alimony). The proper course, if the judgment was wrong in this respect, would be to vacate or modify the same." hibition : " The issue in the divorce suit did not embrace the disposition of property. In an action for divorce, if a disposition of property is sought, there should be some plead- ing by which an issue as to such property would be tendered. It appearing in this cause that no such issue was tendered, the court had no jurisdiction to make the restraining order." Jordan v. Jordan, 53 Mich. 552. Divorce. Held: "The bill of complaint says nothing in regard to alimony. There was nothing in the pleadings ... to which the subject-matter of alimony was germane, or upon which the relief sought could be based. The court had no power to grant relief." Clayton v. Clayton, i Ashm, (Pa.) 53: "Not a word is said in the libel about alimony. There was nothing in the pleadings ... to which the subject-matter of the motion for alimony was germane, or upon which the relief sought could be based. Com- plainants of pvery description must recover secundum allegata et probata^ and if we
 * Remington v. Sup. Ct., 69 Cal. p. 633. Divorce and application for a writ of pro-