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might properly be found in his favor, capacitated from giving the notice, or Chadbourne v. Exeter (1892) 67 N. H. directing that it should be given." 190, 29 Atl. 408. Otherwise, if the And in Egan v. Saltfleet Twp. (Ont.) allegations of the petition fail to state supra, where plaintiff riding on a cause of action. Owen v. Derry wagon was thrown “forward and (1902) 71 N. H. 405, 52 Atl. 926; straddle the tongue,” and was "conKnight v. Haverhill (1915) 77 N. H. fined to bed for two weeks and suffered 487, 93 Atl. 663.
so much that he could not sleep day or And see Welsh v. Franklin (1900) night,” it was held that there was 70 N. H. 491, 48 Atl. 1102.
nothing in the physical condition of
the plaintiff which would excuse a dee. “Reasonable excuse" not prejudicing
lay in giving the statutory notice, and defense.
that ignorance of the law is not an In the province of Ontario the stat
excuse. utes require notice within seven days,
And in Fuller V. Niagara Falis but contain the saving provision that,
(1920) 48 Ont. L. Rep. 332, wheia except in certain specified cases, fail
plaintiff fell on a defective sidevialk ure to give the notice within such
and was seriously injured, so as to period shall not be a bar to the action,
cause severe pain and incapacitate if the court is of the opinion that there
her for household duties, and did not is "reasonable excuse" for the want
know that it was necessary to give noor insufficiency of the notice, and that
tice, the court, aplying the rule that the corporation was not thereby preju
failure to give notice is not excused diced in its defense. This statute
where the failure is due to the fact does not define the term “reasonable
that the injured person hopes that his excuse,” in consequence of which it
condition will alter for the better, so has been said that “what may consti
that it will be unnecessary ever to give tute reasonable excuse for not giving notice, but that if the failure is due to notice must depend very much upon
the supposition that if things continue the circumstances of the particular
as they are it will not be necessary to case.” O'Connor v. Hamilton (1905)
give notice, there is reasonable excuse 10 Ont. L. Rep. 529, quoted with ap
-held that plaintiff had not excused proval in Egan v. Saltfleet Twp.
her failure. (1913) 29 Ont. L. Rep. 116, 4 Ont.
In O'Connor v. Hamilton (1904) 8 Week. N. 1384, 13 D. L. R. 884. A
Ont. L. Rep. 391, it was held that there number of cases have passed upon the
was a reasonable excuse for failure to question.
give the notice within seven day3, Thus, in Morrison v. Toronto (1906)
where plaintiff was taken immediately 12 Ont. L. Rep. 333, where plaintiff
to a hospital, where he was confined waş so disabled as to make him incapa. for more than the statutory period, ble of giving notice on his own initi- his only arm was broken, his hip and ative, spontaneously and unaided by leg bruised, and his shoulder swollen, any direction or instruction as to no- and his arm was set twice within a tice, and was physically unable to few days; but on appeal, in (1905) 10 serve such notice, it was held that he Ont. L. Rep. 529, the judgment was was excused.
reversed on the ground that plaintiff On the other hand, in Anderson v. was under no disability except ignoToronto (1908) 15 Ont. L. Rep. 643, rance of the law, which would not exwhere the plaintiff sprained his foot, it cuse the omission, although the court was said that, while no doubt the in- did say that the fact of the accident by jury occasioned great bodily suffering itself is not a reasonable excuse, “if it “there is nothing to show that the is not accompanied by some disabling patient was so affected and prostrated circumstance, mental or physical." that he was physically or mentally in
G. J. C.
(- Tenn. 256 8. W. 890.)
Contempt - to enforce payment of alimony.
1. After a court has lost jurisdiction over a decree for alimony payable in instalments out of the husband's labors, by expiration of the term without reservation of power to alter it, payment cannot be enforced by attachment for contempt irrespective of the changed condition of the wife or husband, where the statute provides for enforcement by sequestering rents and profits of real estate and personal property, by the appointment of a receiver and “by such other lawful ways and means as are usual and according to the course and practice of the court."
[See note on this question beginning on page 649.] Appeal court constitutional payment of monthly alimony as a conquestions.
dition to allowing an appeal from an 2. The supreme court, and not the adjudication of contempt where the court of civil appeals, has jurisdic
statute provides that where decrees tion of an appeal where constitutional
are for a specific sum of money, and questions were raised in defense of
against a person in his own right, the action, insisted on in the brief, and determination of the appeal re
the appeal bond shall be for the quires a consideration of such ques
amount of the decree and damages and tions.
costs. - scope of consideration.
- second law of case. 3. Upon certiorari to review a judg- 5. A ruling by the appellate court ment of the court of civil appeals that the trial court had no power to upon appeal involving consideration of constitutional questions, the case
modify a decree for alimony after exwill be considered as if on appeal.
piration of the term is the law of Appeal condition payment of
the case on a subsequent appeal. alimony.
[See 2 R. C. L. 224; 1 R. C. L. Supp. 4. The chancellor cannot require 459; 4 R. C. L. Supp. 94.]
CERTIORARI to the Court of Civil Appeals to review a decree modifying a decree of the Chancery Court for Shelby County (Heiskell, Ch.) in a contempt proceeding to enforce payment of alimony. Reversed.
The facts are stated in the opinion of the court. Messrs. Jackson, Neil, & McRee and Park, 80 N. Y. 156; 1 R. C. L. Alimony, W. C. Rodgers for plaintiff in certio- ' $ 105; 19 C. J. Divorce, $ 627. rari.
A defendant will be punished for Messrs. Ewing, King, & King and contempt when he wilfully refuses to Lowell W. Taylor, for defendant in comply with a decree for alimony. certiorari:
19 C. J. p. 299, arts. 691, 692; 14 Cyc. One cannot relieve himself from p. 799; 1 R. C. L. Alimony, art. 103; the payment of alimony according to Ex parte Hart, 94 Cal. 254, 29 Pac. the provision of a divorce decree by 774; Lyon v. Lyon, 21 Conn. 185; the obligations imposed upon him by Woodall v. Woodall, 147 Ga. 676, 95 a second marriage.
S. E. 233; Barclay v. Barclay, 184 Ill. State ex rel. Brown v. Brown, 31 471, 56 N E. 821; Foster v. Foster, Wash. 397, 62 L.R.A. 974, 72 Pac. 86; 130 Mass. 189; Shaffner v. Shaffner, Ryer v. Ryer, 33 Hun, 116; Park v. 212 Ill. 492, 72 N. E. 447.
A plea of liability to comply with for the petitioner, the sum of $150 the decree will not be sustained where
per month, beginning August 1, the defendant actually had the means, 1920, and on the 1st of every month but wilfully and intentionally used them for other purposes.
thereafter during the lifetime of the
petitioner.” 1 R. C. L. Alimony, art. 105; Staples v. Staples, 87 Wis. 592, 24 L.R.A. 433,
Thereafter, on the 30th day of 58 N. W. 1036.
July, 1920 (erroneously said to be
on the 24th day of June, 1919, in the Malone, Special Judge, delivered reported case, 144 Tenn. 304, 232 the opinion of the court:
S. W. 443), L. C. Going filed a peti. This is an appeal from a contempt tion, seeking by said petition to have proceeding to enforce the payment the decree rendered July 11, 1919, of alimony.
vacated or modified on the ground This case was heard by this court that there had been a change in the on another phase of the litigation at status of the parties since the rena previous term, and the opinion of dition of said decree, warranting the court, delivered at the April such action. In this petition it was term, 1921, is reported in 144 Tenn. alleged that one of the children had 303, 232 S. W. 443.
married; that the family expenses As appears from the statement of had been greatly reduced; that the facts made in that case, the com- wife had come into the possession plainant, Mrs. Birdie M. Going, on of certain property from her deJune 24, 1919, filed her original bill ceased father's and brother's esagainst her husband, L. C. Going, in tates, which, together with certain the chancery court of Shelby coun- property given to her by the petity, seeking a divorce from him on tioner prior to the granting of the the grounds of adultery and of aban- divorce, and the permanent alimony donment and failure to provide. No decreed to her by the court in the defense was made to this bill, and
divorce proceeding, was sufficient an order pro confesso was taken for her support.
The petitioner against the husband. The case was prayed to be relieved from paying finally heard on July 11, 1919, at any other or further sums to the which time the chancellor decreed complainant under said decree, or an absolute divorce to the wife, al- that said decree at least be modified lowing custody of their two minor
so as to relieve petitioner from a children, a boy aged seventeen years, portion of the payments thereby and a girl aged fourteen years, and required. after reciting "that the defendant is On August 17, 1920, Mrs. Going a man of learning and ability, with answered the petition of her former large earning capacity, and the peti- husband, showing the property tioner is practically without means, which had come into her possession and is now working to (support] from the estates of her father and herself and family,” further de- brother since the divorce was grantcreed "that the defendant, L. C. Go- ed, as well as the property received ing, as permanent alimony, pay to from the petitioner prior to grantthe petitioner, Mrs. Birdie M. Go-. ing the divorce, and denying that ing, the sum of $4,000 cash, which the income from said property, inhas this day been done, and the re- cluding payments to be made by peceipt of which is acknowledged, and titioner under the decree, was more that the said L. C. Going pay into than sufficient to support herself the hands of the clerk and master and her unmarried daughter, then of this court on July 1, 1920, the fifteen years of age, and living with sum of $1,800 for the support and her mother in the city of Memphis. maintenance of the petitioner, Mrs. On November 23, 1920, before the Birdie M. Going, and that the said petition of Mr. Going had been actL. C. Going also pay into the hands ed upon, Mrs. Going filed her petiof the clerk and master of this court, tion in the case, alleging that the
(- Tenn. —,
256 8. W. 890.) husband had never paid the $1,800 ing the sum of $150 on the 1st day which the court decreed he should of every month pending the appeal pay on or before July 1, 1920, but from this decree, and until it is finalhad wilfully refused to pay this sum, ly determined by the supreme court and had also wilfully refused to pay of Tennessee." her the monthly sum of $150 since L. C. Going excepted to the deAugust 1, 1920, as provided by the cree, and prayed an appeal to this decree.
court, which was granted, as provid. The petition was supported by af- ed above. Subsequently, by order fidavits alleging that the said L. C. entered on the same day, Mr. Going Going had wilfully disobeyed the was allowed to substitute a $2,500 decree of the court, and was there- note in lieu of the $3,500 appeal fore in contempt, and prayed for an bond ordered by the chancellor. attachment of his body, and that he Thereafter, on February 10, 1920, should be required to answer and Mr. Going executed a bond, with show cause why he was not in con- personal surety, for $250, to cover tempt of court.
the costs of the appeal. Mr. Going answered this petition, Two points were considered by setting forth his reasons for failing this court on that appeal: to pay the $1,800, together with sub
(a) The right of the chancellor sequent instalments, and insisting to modify a final decree for alimony, that he was not in contempt of payable in instalments, after the court on account of this failure. adjournment of the court, where
On February 4, 1921, the cause such decree makes no reservation in was heard before the chancellor on this behalf. the two petitions and the answers (b) The action of the chancellor thereto, the testimony of witnesses in requiring the petitioner to exeintroduced in open court, and the cute a $3,500 bond, or deposit with original record in the cause, includ. the master of the court the $2,500 ing the final decree for divorce, and note “as a condition to his right to the chancellor was thereupon of appeal."
” opinion that “there is no reason for Disposing of the first point, the modifying or changing the terms of court said, at page 308 of 144 Tenn.: the former decree, and that the peti- “We think the decree of the chantion of L. C. Going is not supported cellor must be affirmed.
The auby the evidence." And, after recit- thorities generally sustain the proping that the said L. C. Going was in osition that a decree for alimony in arrears in the payment of alimony a case a vinculo, made without rein the sum of $2,850, the court fur- serve, although payable in instalther decreed "that the petition of ments, cannot be changed or altered L. C. Going be, and the same is here- after such decree becomes final, by, dismissed, and he is hereby or- which is after the adjournment of dered and directed to pay into the court. Mayer v. Mayer, 154 Mich. hands of the clerk and master of 386, 19 L.R.A.(N.S.) 245, 129 Am. this court the sum of $2,850 within St. Rep. 477, 117 N. W. 890; Sampten days from this date, and appeal
son v. Sampson, 16 R. I. 456, 3 is hereby granted, provided the said
L.R.A. 349, 16 Atl. 711; Livingston L. C. Going shall enter into a bond v. Livingston, 173 N. Y. 377, 61 with good and solvent sureties in
L.R.A. 800, 93 Am. St. Rep. 600, 66 the sum of $3,500 to secure the pay
N. E. 123; Kamp v. Kamp, 59 N. Y. ment of the amount of alimony now
220; Erkenbrach v. Erkenbrach, 96 in arrears and the costs, in the event N. Y. 456; Ruge v. Ruge, 97 Wash. he fails in his appeal, and provided 51, 165 Pac. 1063, L.R.A.1917F, 721, further that, beginning with the 1st and the cases there cited. day of February, 1921, he pay into “There is no reservation in the the hands of the clerk and master decree in the instant case giving the for the benefit of Mrs. Birdie M. Go- court the right to modify it as to alimony. We have no statute in this 1919, as attempted to reach and afstate which gives the court any such fect the future earnings and accesauthority. The decree was rendered sions of the original defendant, L. C. more than a year before the present Going, was and is a nullity and inpetition was filed by the husband, capable of enforcement by the aid of and had become final. Like other this court or any other. final decrees, it was beyond the con- “(2) The decree heretofore entrol of the court, and could not be tered in said cause on the 14th day modified at a subsequent term. of July, 1919, which is relied on as
“It would seem that the rule is the basis for the petition for condifferent in cases of an allowance of tempt filed, is a final judgment, and alimony granted in conjunction as such is a debt, and, being a debt, with a divorce a mensa et thoro. In is incapable of enforcement by consuch cases a modification may be tempt proceedings, because such made, even in the absence of stat- proceedings carry the power of imutory authorization, inasmuch as prisonment, and it would be in violapower to amend such an award ex- tion of the Constitution of this state isted at common law. 1 R. C. L. § to imprison the demurrant for fail92; 60 Am. Dec. 668, note.”
ure to pay said debt. Disposing of the second point, the “(3) This said decree being a court said, at page 310 of 144 Tenn.: final judgment, and the time during
"We are of the opinion that there which the court might exercise juis no error in the action of the chan- risdiction over same, or the subjectcellor requiring the execution of the matter thereof, having elapsed, it is bond referred to. It is expressly beyond the jurisdiction or control of provided by § 4896 of Shannon's this court, and is not now subject Annotated Code as follows: "Where to addition or modification by any decrees are for a specific sum of procedure, especially as the commoney and against the party in his plainant has a plain and adequate own right, the appeal bond shall be remedy by execution which is profor the amount of the decree and vided in said decree. damages and costs.'
“(4) That so much of said decree “The foregoing section has refer- entered in said cause on February 4, ence to decrees or judgments in the 1921, as attempted to adjudge and chancery court. Bilbo v. Allen, 4 decree to Mrs. B. M. Going the sum Heisk. 31, 34; Chenault v. Chenault, of $150 per month to be paid by L. 5 Sneed, 248.
C. Going, is void and unenforceable, “Having elected to deposit with because the court had no jurisdicthe master the $2,500 note in lieu of tion to make such an award at that the execution of the bond for $3,500, time, there being no marital relaappellant cannot complain.”
tions existing between the parties, The result was to affirm in all re- nor any marital obligations resting spects the decree of the chancellor. upon either one to the other, they
On the remand of the case the having been divorced a vinculo. complainant, Mrs. Going, on the “(5) So much of said decree dat15th day of August, 1921, filed hered February 4, 1921, as attempted to petition in the cause for the purpose require said L. C. Going to pay $150 of having an attachment of the de- per month pending his appeal therefendant, Going, for contempt in fail- from to the supreme court, was also ing to pay the amounts fixed by the void and unenforceable for the reaoriginal decree of July 11, 1919, and son that the court had no jurisdicthe subsequent decree of February tion over said cause after the perfec4, 1921. The defendant, L. C. Go- tion of said appeal, and had no powing, demurred to this petition on the er to control, or attempt to control, following grounds:
the same after an appeal. “(1) That so much of the origi- “(6) The decree relied on herein, nal decree entered herein on July 14, being dated July 14, 1919, provides