Ford v. Ford
Ford v. Ford
Opinion of the Court
“A decree for permanent alimony is usually treated as a judgment enforceable by execution like any other judgment; but an order for the payment of temporary alimony or suit money not being final, cannot be enforced by execution, unless the statute directs otherwise.”
The proceedings shown by the record before us assimilate the decree to one for permanent alimony. After appellant had failed to comply with the court’s orders for the payment of the monthly sums decreed by the court, appellee formally petitioned the court praying that judgment be rendered for the amount in arrear and that execution issue *520 for the collection of the same. At the end of a proceeding inter partes the court decreed in accordance with the prayer of the petition. The statute (section 3803 of the Code) provides that “pending a sujt for divorce, the court must make an allowance for the support of the wife out of the estate of the husband,” etc., and this would seem sufficient to dispose of this case. In Webb v. Webb, 140 Ala. 262, 37 South. 96, 103 Am. St. Rep. 30, a case like this, the chancery court had ordered execution to issue. This court seemed to concede that the court might reach and appropriate by any of its processes any money or property of the party decreed to pay. And in Ex parte Whitehead, 179 Ala. 652, 60 South. 924, the court observed, very generally, that:
“If the defendant is contumacious or has property that may be reached, the court will compel 'obedience to its decree by such writs as customarily issue out of courts of chancery for the execution of justice.”
Execution is such a writ, and is, in our judgment, proper in this cause. This ruling will not be found to vary from those in Murray v. Murray, 84 Ala. 363, 4 South. 239, or Brady v. Brady, 144 Ala. 414, 39 South. 237. The questions considered in those cases were different from that here raised.
Affirmed.
Concurring Opinion
(concurring). In my opinion the decision in Murray v. Murray, 84 Ala. 363, 4 South. 239, was authority for the proposition that an execution could not issue to enforce the payment of alimony pendente lite, even when in arrears; hut in Webb v. Webb, 140 Ala. 267, 37 South. 96, 103 Am. St. Rep. 30, this court, though approving quotation from the note in 24 L. R. A. 433, announced a different conclusion from that prevailing in Murray v. Murray on this point. I am constrained to give effect to the latest announcement of the court on this point, and therefore yield my. concurrence only because of th.e later decision. It.seems to me that in employing an execution to enforce the payment of alimony pendente lite the court should proceed with the greatest caution, and not order the issuance of the writ' until all other measures available have been employed without, effect.
Reference
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- Ford v. Ford.
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