Appeal-second -law of case.

any event, that opinion is the law of this case on the present appeal, and we must proceed on the theory that the chancellor had no power to modify the terms of the original decree. Bristol v. Bostwick, 146 Tenn. 205, 210, 240 S. W. 774.

(2) Should this judgment for permanent alimony, beyond the power of the chancellor to alter, be enforced by contempt proceedings?

On behalf of the appellant, it is contended that such a judgment becomes a debt which is to be collected by execution like any other debt, or, at most, by sequestration of the husband's property, or the appointment of a receiver as provided by our statutes on the subject, and that to enforce its collection by contempt proceedings would violate § 18 of article 1 of the Tennessee Constitution, which provides: "The legislature shall pass no law authorizing imprisonment for debt in civil cases."

On behalf of the appellee, it is contended that permanent alimony, although the decree has passed out of the control of the chancellor, is not, properly speaking, a debt, but a portion of the husband's estate equitably due the wife, or in the nature. of a penalty for his misconduct, and that the husband's obligation may be enforced by imprisonment without violation of our constitutional provision.

(a) Our statutes on the subject of enforcing a decree for alimony are carried into the Code of 1858 in

§ 2470 (Shannon's Compilation, § 4223), which reads as follows: "Decree for Alimony, How Enforced. The court may enforce its orders and decrees by sequestering the rents and profits of the real estate of the husband, if he has any, and his personal estate and choses in action, and by appointing a receiver thereof, and from time to time causing the same to be applied to the use of the complainant and her children, or by such other lawful ways and means as are usual and according to

the course and practice of the court, as to the court shall seem meet and agreeable to equity and good conscience. 1801, chap. 6, § 3; 1835-36, chap. 26, § 10."

As will be noted, our statute does not provide for an attachment for contempt as a method of enforcing the collection of alimony; and it may be further noted that there is no reported case, since the enactment of this section of the Code of 1858, or the passage of the Acts of 1801 and 1835 on which it is based, which upholds the exercise of such a pow

er.

(b) It is, however, contended on behalf of the appellee that an attachment for contempt in such cases is one of the "other lawful ways and means" which are "usual and according to the course and practice of the court," even after the expiration of the term at which the decree was rendered.

In support of this contention, reference is made to certain standard text-books, or encyclopedias, and to certain cases decided by other state courts, and by the United States Supreme Court, especially the cases of Wetmore v. Markoe (1904) 196 U. S. 68, 49 L. ed. 390, 25 Sup. Ct. Rep. 172, 2 Ann. Cas. 265, and Audubon v. Shufeldt, 181 U. S. 575, 45 L. ed. 1009, 21 Sup. Ct. Rep. 735.

These two cases, it may be observed, both deal with the same question, viz., whether alimony is a debt provable in bankruptcy, and therefore to be evaded by taking the Bankrupt Act (U. S. Comp. Stat. §§ 9585-9656, 1 Fed. Stat. Anno. 2d ed. p. 509). In the Audubon Case, the decree was rendered in a court which had control over it, with full power to amend or alter. In the Wetmore Case, the decree rendered by one of the courts of New York was concededly beyond the power of the court to alter or amend.

Whatever was said by the United States Supreme Court in these opinions must be considered in the light of the actual question under consideration and the actual point decided, and is, obviously, not a decision

so far as it is sought to be applied to a contempt proceeding. The actual decision in each case was that alimony, not being based on contract, was not a provable debt in bankruptcy.

The appellee also relies on the text of 1 R. C. L. p. 960, where it is said: "Even after the expiration of the term at which a decree for permanent alimony was granted (Welty v. Welty, 195 Ill. 335, 83 Am. St. Rep. 208, 63 N. E. 161), payment thereof may be enforced by an order committing the husband for contempt of court (Lewis v. Lewis, 80 Ga. 706, 12 Am. St. Rep. 281, 6 S. E. 918; Staples v. Staples, 24 L.R.A. 433, and note (87 Wis. 592, 58 N. W. 1036, 17 Am. St. Rep. 272, note; 137 Am. St. Rep. 875, note), owing to the fact that alimony does not constitute a 'debt,' within the meaning of that term as used in the usual constitutional inhibition against imprisonment for debt." Re Popejoy, 26 Colo. 32, 77 Am. St. Rep. 222, 55 Pac. 1083; Bronk v. State, 43 Fla. 461, 99 Am. St. Rep. 119, 31 So. 248; Barclay v. Barclay, 184 Ill. 375, 51 L.R.A. 351, 56 N. E. 636; State ex rel. Cook v. Cook, 66 Ohio St. 566, 58 L.R.A. 625, 64 N. E. 567; Re Cave, 26 Wash. 213, 90 Am. St. Rep. 736, 66 Pac. 425; 24 L.R.A. 434, note.

We have, for convenience in the quotation, associated directly with the text the citations in the footnotes.

These authorities will now be examined.

In the case of Welty v. Welty, supra, the decree of divorce provided that "the defendant Robert A. Welty shall pay to the said Catherine Welty $25 on the 1st day of each month for a period of eight months, commencing June 1, A. D. 1899, and continue until the sum of $200 is paid, said sum to be in lieu of and in full for alimony and in full of all other claims of any kind or nature." On June 13, 1900, at a subsequent term of the court, the defendant, R. A. Welty, was committed to jail for 31 A.L.R.41.

contempt in failing and refusing to pay alimony.

Answering the contention that after final judgment the jurisdiction of the court was exhausted, the court says: "This contention also is without force. It has always been. the law in this state that a decree for alimony is subject to modification by the court in which the decree was entered, according to the varying circumstances of the parties. Barclay v. Barclay, 184 Ill. 375, 51 L.R.A. 351, 56 N. E. 636. Section 18 of the Divorce Act provides that 'the court may, on application, from time to time, make such alterations in the allowance of alimony and maintenance, and the care, custody, and support of the children, as shall appear reasonable and proper.' 2 Starr & Ct. Anno. Stat. 2d ed. p. 1449. Under this section of the statute the court is invested with power to declare the termination of all alimony upon the occurrence of facts reasonably justifying such a declaration. Lennahan v. O'Keefe, 107 Ill. 620. In Cole v. Cole, 142 Ill. 19, 19 L.R.A. 811, 34 Am. St. Rep. 56, 31 N. E. 109, we said [142 III. 23]: "The power over the subject-matter of alimony is not exhausted by the entry of the original order, but is, under the statute, continuing, for the purpose, at any time, of making such alterations thereof as shall appear to the chancellor, in the exercise of a judicial discretion, reasonable and proper.' Foote v. Foote, 22 Ill. 425; Stillman v. Stillman, 99 Ill. 196, 39 Am. Rep. 21; Lennahan v. O'Keefe, 107 Ill. 620."

As will be observed, the court in that case had power under the specific terms of a state statute to modify the decree at any time, and the decision is based on that statute.

The case of Lewis v. Lewis, supra, was an attachment for contempt because of failure to comply with a final decree giving the wife alimony. The opinion is quite meager, cites no authority, and does not show whether the court retained jurisdiction of the case in the final decree,

or whether the motion for an attachment was made at the trial term or at a subsequent term of the court.

The case deals chiefly with the husband's contention that to allow an attachment would be to authorize imprisonment for debt. On this point it is said: "We are of the opinion that, when a court directs the payment of alimony by a husband to his wife, it is a duty he owes, not only to his wife, but to the public, to comply with the order; and if he fails to perform that duty, we see no reason why the court cannot compel him to do so by an order of attachment, directing his imprisonment in the event of his failure to comply with the order. Of course, this is a power which should be carefully and cautiously exercised, and before granting the writ the court ought to be satisfied that there is good ground for the attachment; and such appears to have been the case here. This is a case in which the old adage applies, that 'when a bird can sing and will not sing, he must be made to sing.' When it appeared to the court that this defendant had the money to comply with the decree, and that he failed to comply with it, we think the court had the right and the power to imprison him until he did comply with it."

It is further to be observed that the Georgia constitutional provision, with regard to imprisonment for debt, seems to exclude cases of contempt. Carlton v. Carlton, 44 Ga. 216, 220.

In the case of Staples v. Staples (1894) 87 Wis. 592, 24 L.R.A. 433, 58 N. W. 1036, the wife obtained judgment for divorce a vinculo on March 25, 1892, and was awarded the custody of an infant child. By the terms of the decree the husband was directed to pay the wife, as alimony, $150 annually, in equal quarterly instalments; also the sum of $32 alimony pendente lite, which he had previously failed to pay. The husband paid none of these sums, and in September, 1893, a motion was made to punish him for con

tempt for his failure to pay, the whole amount then due being $257.

It was insisted by the husband that since a judgment for alimony might be enforced by execution, and since contempt proceedings for nonpayment of money are only authorized where execution cannot be awarded, no contempt proceeding would lie. Replying to this argument, the court says: "Were the judgment here a judgment for a gross sum, payable at once, it might undoubtedly be docketed as a money judgment, and execution might issue to enforce it. Keyes v. Scanlan, 63 Wis. 345, 23 N. W. 570. In that case the argument would be strong that contempt proceedings could not be resorted to, and the position would not be without authority. Lansing v. Lansing, 4 Lans. 377. This decision, however, has been seriously questioned in New York. Strobridge v. Strobridge, 21 Hun, 288. But conceding the correctness of the doctrine, it cannot apply to the present case. Execution can be issued only on a judgment which has been docketed. Rev. Stat. §§ 2968, 2969. It does not appear in the present case that any judgment has been docketed for any of the instalments of alimony. In fact, there seems to be no provision of law for such docketing. A judgment is to be docketed at the time of filing the judgment roll. Id. § 2899. The remarks of the court in Park v. Park, 18 Hun, 466, upon this point, are quite pertinent. It is there said: It is not explained, however, in that case (referring to Lansing v. Lansing, supra), how a judgment for final alimony is to be docketed— whether or not a new docket is to be made every time the annual or semiannual alimony becomes payable. And as a judgment is made a lien only for ten years from the filing of the roll and docketing, it is not clear how, after ten years from the judgment, the amounts of the alimony are to be docketed so as to be a lien on land. And docketing is necessary before the issue of execution. Besides, aft

er the lapse of five years from the entry of judgment, execution is to issue only by leave of the court, granted on notice. How this provision is to apply to alimony is not explained in that decision.' This reasoning was concurred in by the court of appeals in the same case. Park v. Park, 80 N. Y. 156. Our conclusion is that contempt proceedings will lie to compel payment of instalments of alimony ordered to be paid in the future by a final judgment of divorce."

Here, again, as will be noted, nothing is said as to the power of the court over the decree at a subsequent term, and the point of the decision seems to be that a judgment for alimony could not, under the peculiar statutes of Wisconsin, be enforced by an execution.

The contrary seems to be true in this state. See White v. Bates, 89 Tenn. 570, 572, 573, 15 S. W. 651; Watson v. Campodonico, 3 Tenn. C. C. A. 698, 702, 709.

In the case of Re Popejoy (1899) 26 Colo. 32, 77 Am. St. Rep. 222, 55 Pac. 1083, the wife recovered against the husband a money judgment for separate maintenance. On his failure to pay this judgment he was committed for contempt of court, and applied for a habeas corpus to test the legality of his imprisonment. Nothing appears as to the court's control over the decree.

This case, moreover, does not deal with alimony at all, but with separate maintenance.

The case of Bronk v. State (1901) 43 Fla. 461, 99 Am. St. Rep. 119, 31 So. 248, was another habeas corpus proceeding, brought by the husband because a writ of ne exeat had been issued, requiring him to procure bail in the sum of $10,000 immediately on the filing of the bill, and before any alimony had been awarded to the wife.

It is therefore evident that whatever was said by the court as to imprisonment for failure to pay alimony must have been said arguendo.

In the case of Barclay v. Barclay (1900) 184 Ill. 375, 51 L.R.A. 351,

A

56 N. E. 636, the wife, on June 27, 1899, filed a contempt proceeding against her husband, alleging that by the terms of a decree "awarded to her for the payment of alimony in her suit for separate maintenance," the sum of $532 was due from the defendant. The husband filed an answer, averring that on July 5, 1899, he had filed his petition in bankruptcy, scheduling the claim of the wife.

The supreme court, on appeal, held that the judgment for alimony was not a provable debt in bankruptcy, and that the defendant was subject to contempt proceedings.

As heretofore shown, the statute of Illinois gives the trial court full power and jurisdiction on the subject of alimony, even after the expiration of the term at which the original decree was rendered.

In the case of State ex rel. Cook v. Cook (1902) 66 Ohio St. 566, 58 L.R.A. 625, 64 N. E. 567, the wife filed her petition, alleging extreme cruelty and gross neglect of duty on the part of the husband; that he had abandoned her without cause; "and that in consequence thereof, and of ill treatment on his part towards her, the parties had separated, and that by reason of the premises she was entitled to alimony out of the estate and property" of the husband, and to judgment therefor.

The court thereupon decreed that the husband pay $400 as alimony in the following manner; Fifty dollars in thirty days from October 3, 1896, and $50 in each six months thereafter until the full amount was paid. More than thirty days having elapsed since the maturity of the sum of $50 payable in thirty days. from October 3, 1896, and no part thereof having been paid, the wife filed a contempt proceeding against the husband, and he was adjudged guilty of contempt, and committed to jail.

Although this case is, apparently, treated in the opinion as a contempt proceeding for failure "to pay a final judgment for alimony," it. would appear that the case was not

one of an absolute divorce, but rather of a separation; and it is not shown that the court had lost jurisdiction of the case, or even that the order was made after the expiration of the term.

The appellee also relies upon the text of 19 C. J. 299, 300, where it is said that "the power to enforce a decree for permanent alimony by attachment for contempt belongs inherently to a court having jurisdiction of divorce suits, even after the expiration of the term at which the decree was rendered.

But while many cases are cited in the notes to the first proposition (the inherent power of the court, etc.), only one case is cited to sustain the proposition that attachment may be issued after the expiration of the term, viz., the case of Cavenaugh v. Cavenaugh (1902) 106 Ill. App. 209 (erroneously cited as 106 Ill.), in which case (page 212) the court "expressly reserved the power to change the order as to the alimony and had jurisdiction of the subject-matter." The court, moreover, follows Welty v. Welty, 195 Ill. 335, 88 Am. St. Rep. 208, 63 N. E. 161, which, as already pointed out, is based on the Illinois statute.

(c) We have analyzed these authorities to demonstrate that matters of divorce and alimony are largely regulated by statute in the various states of the Union, and that it is very difficult to lay down a broad and comprehensive rule on such matters, and say that it is supported by the weight of authority. The weight of authority, indeed, does support certain propositions for example, the proposition that alimony is not a debt, the payment of which may be escaped by taking the Bankrupt Act; or the proposition, heretofore discussed, that after the expiration of a term the court loses control of the decree, in the absence of a reservation in the decree, or a statute giving such control.

(d) But we are unable to say that the weight of authority supports the proposition that after a

decree becomes fixed and out of the control of the chancellor it may, at any subsequent term, be enforced by contempt proceedings, irrespective of the changed condition of the wife.

To maintain the broad proposition advanced by the appellee in this case, it would be logically necessary to hold that, though the wife may have become independently wealthy since the rendition of the decree, and though it might grind the husband to the bone to continue his payments, he must, nevertheless, continue such payments or be imprisoned for failure so to do, even though this be merely to satisfy the vengeance of the divorced wife.

It is argued that the case of Williams v. Williams, 146 Tenn. 38, 236 S. W. 938, justifies such a contention. We do not so understand that case. The court says, at page 41 of 146 Tenn.: "Counsel have displayed much learning and research on the subject of divorce and alimony, and have drawn upon the ecclesiastical law and decisions of numerous courts in various jurisdictions in support of their respective arguments. No authoritative case directly in point appears to have been discovered. Indeed the subject is one which must be governed by our statutes and by the interpretations that have been put upon them by previous decisions of the court. It seems quite clear upon principle and authority that the right to alimony must be found in the statutes, and the amount thereof fixed upon the considerations named in the statute. We are therefore led directly to this source for the knowledge of the law by which the rights of these parties must be determined."

It thus appears that the decision of this court turned on the application of the Tennessee statutes to a particular case, and was not intended to formulate a rule of law to the effect that a wealthy wife may, under all circumstances, exact alimony, and compel its payment.

This is shown by the further language of the court, at page 45 of