McCOY, J.
In this case it appears that in October, 1898, in the circuit court of Davison county, plaintiff commenced an action for divorce against defendant; that both plaintiff and defendant were residents of this state; that the summons was personally served upon defendant, and that he appeared and answered in said action, which answer was subsequently withdrawn; and that thereafter, on the 3d day of May, 1900, the following judgment, omitting formal parts, was, rendered and entered: “And now, on this 3d day of May, A. D. 1900, comes the plaintiff, who alleges [339] and gives evidence concerning the allegations of her complaint, and the court, after hearing such evidence, and after having made its findings of fact and conclusions of law; it is now, on motion of Charles J. Farmer, attorney for the plaintiff, ordered, adjudged, and decreed that the bonds of matrimony now existing between ■the plaintiff and defendant be, and the same are hereby forever dissolved and annulled.” Thereafter, in June, 19x1, the plaintiff petitioned the said circuit court, by motion in the original action, to modify the said judgment of May 3, 1900, by allowing her permanent alimony in accordance with the prayer of said motion or petition. Said petition, in substance, alleged and recited the prior proceedings had in the action; that a changed property,and financial condition existed in 1911 that did not exist in May, 1900; that neither she nor defendant had ever remarried; and that defendant has no one dependent upon him, and is abundantly able to support plaintiff comfortably the remainder of her life. Defendant appeared and resisted said motion and petition to modify said judgment upon the grounds, among others, that at the time said decree of divorce was granted ho provision in relation to alimony was asked for or allowed, and no provision was placed in the decree reserving .the allowance of alimony at any future time; that said petition should be dismissed for want of jurisdiction, and should be dismissed upon the merits; that said petition does not state facts sufficient to constitute any cause of action or any claim against the property of defendant. A hearing was had upon said petition and upon offidavits and counter affidavits of the respective parties. On June 29, 1911, the court made the fallowing order: ‘That the said application for the payment of alimony be and the same is hereby denied, and it is further ordered that said application for the payment of alimony to the plaintiff in any amount be and the same is hereby denied, and that the said application for the payment of alimony be and the same is hereby dismissed on the merits.” From the order denying and dismissing the said motion and petition to modify said judgment the plaintiff appeals assigning as error the said ruling of the court.
Plaintiff based her contention and right to a modification of said judgment upon section 92 of the Civil Code, providing as follows : “Where a divorce is granted for an offense of the 'husband, the court may compel him to provide for the maintenance of the [340] children of the marriage', and to make such suitable allowance to the wife for her support during her life, or for a shorter period, as the court may deem just, having regard to the circumstances of the parties respectively; and the -court may from time to time modify its orders in these respects.” -We are of the opinion that, under the -circumstances of this case, plaintiff’s contention is not tenable. The provision of section 92, Civil Code, authorizing the court from time to time to modify its orders for the maintenance and support of the -wife, contemplates that the right to alimony as well as other property rights -shall -have been presented in the action proper an-d established by the original judgment, and there can be no modification of -an allowance for alimony where -there is no allowance in the original judgment to modify. Section 139, Civil Code of -California, from whence we obtained and adopted our Civil Code, is precisely the same as section 92 now under consideration. In the case of Howell v. Howell, 104 -Cal. 45, 37 Pac. 770, 43 Am. St. Rep. 70, the precise question was before the Supreme Court of California, -and in that case the court said: “Section 139 provides that; where a divorce is granted for an offense of the husband, the court may compel him to provide for the maintenance o-f the children, and to make suitable allowance for the support of the wife, and that ‘the court may from time to- time modify its orders in these respects.’ But the latter section clearly contemplates that the right to- alimony, as well as -other financial and property rights, shall have been presented and litigated in the action-for divorce and established by the judgment; and the provision is that, where the right to' alimony has been thus established, the amount may be changed -by a modification -of the order. But in the case at bar there is nothing to ‘modify.’ After the judgment granting the divorce the plaintiff was no longer the wife of defendant, and he owed her no longer any marital duty. Prom that time she could enforce against him no obligation not imposed by the court at the time of the judgment. In this case at bar the-judgment became final without any award of alimony, and, o-f course, the court could not afterwards ‘modify’ what never existed-. In the cases cited by -respondent the right to alimony had been established in the final decree, or the disposition of the question of alimony had been expressly reserved for further consideration. Our conclusion is that the court below had no jurisdiction to make [341] the order appealed from, and that the demurrer to the petition should have.been sustained.” Again in O’Brien v. O’Brien, 124 Cal. 427, 57 Pac. 227, and 130 Cal. 410, 62 Pac. 598, the Supreme Court of California adhered to this same rule, and said: “When the court entered its final decree without any reference to alimony, it had no further jurisdiction over the parties or the subject-matter.” In the case of McFarlane v. McFarlane, 43 Or. 477, 73 Pac. 203, 75 Pac. 139, the Supreme Court of Oregon under a similar statute has reached the same conclusion and quotes with approval from Howell v. Howell, supra. In the case of Moross v. Moross, 129 Mich. 27, 87 N. W. 1035, the Supreme Court of Michigan under a similar statute, and under very similar circumstances relating to property matters, also reached the same conclusion, and said: “Had' any provision for alimony been incorporated in the original decree, there can be no doubt that under this statute the court would have the power to grant a further allowance now. We think the court was not in error in holding that under this statute he had no power to grant alimony.”
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McCOY, J.
In this case it appears that in October, 1898, in the circuit court of Davison county, plaintiff commenced an action for divorce against defendant; that both plaintiff and defendant were residents of this state; that the summons was personally served upon defendant, and that he appeared and answered in said action, which answer was subsequently withdrawn; and that thereafter, on the 3d day of May, 1900, the following judgment, omitting formal parts, was, rendered and entered: “And now, on this 3d day of May, A. D. 1900, comes the plaintiff, who alleges [339] and gives evidence concerning the allegations of her complaint, and the court, after hearing such evidence, and after having made its findings of fact and conclusions of law; it is now, on motion of Charles J. Farmer, attorney for the plaintiff, ordered, adjudged, and decreed that the bonds of matrimony now existing between ■the plaintiff and defendant be, and the same are hereby forever dissolved and annulled.” Thereafter, in June, 19x1, the plaintiff petitioned the said circuit court, by motion in the original action, to modify the said judgment of May 3, 1900, by allowing her permanent alimony in accordance with the prayer of said motion or petition. Said petition, in substance, alleged and recited the prior proceedings had in the action; that a changed property,and financial condition existed in 1911 that did not exist in May, 1900; that neither she nor defendant had ever remarried; and that defendant has no one dependent upon him, and is abundantly able to support plaintiff comfortably the remainder of her life. Defendant appeared and resisted said motion and petition to modify said judgment upon the grounds, among others, that at the time said decree of divorce was granted ho provision in relation to alimony was asked for or allowed, and no provision was placed in the decree reserving .the allowance of alimony at any future time; that said petition should be dismissed for want of jurisdiction, and should be dismissed upon the merits; that said petition does not state facts sufficient to constitute any cause of action or any claim against the property of defendant. A hearing was had upon said petition and upon offidavits and counter affidavits of the respective parties. On June 29, 1911, the court made the fallowing order: ‘That the said application for the payment of alimony be and the same is hereby denied, and it is further ordered that said application for the payment of alimony to the plaintiff in any amount be and the same is hereby denied, and that the said application for the payment of alimony be and the same is hereby dismissed on the merits.” From the order denying and dismissing the said motion and petition to modify said judgment the plaintiff appeals assigning as error the said ruling of the court.
Plaintiff based her contention and right to a modification of said judgment upon section 92 of the Civil Code, providing as follows : “Where a divorce is granted for an offense of the 'husband, the court may compel him to provide for the maintenance of the [340] children of the marriage', and to make such suitable allowance to the wife for her support during her life, or for a shorter period, as the court may deem just, having regard to the circumstances of the parties respectively; and the -court may from time to time modify its orders in these respects.” -We are of the opinion that, under the -circumstances of this case, plaintiff’s contention is not tenable. The provision of section 92, Civil Code, authorizing the court from time to time to modify its orders for the maintenance and support of the -wife, contemplates that the right to alimony as well as other property rights -shall -have been presented in the action proper an-d established by the original judgment, and there can be no modification of -an allowance for alimony where -there is no allowance in the original judgment to modify. Section 139, Civil Code of -California, from whence we obtained and adopted our Civil Code, is precisely the same as section 92 now under consideration. In the case of Howell v. Howell, 104 -Cal. 45, 37 Pac. 770, 43 Am. St. Rep. 70, the precise question was before the Supreme Court of California, -and in that case the court said: “Section 139 provides that; where a divorce is granted for an offense of the husband, the court may compel him to provide for the maintenance o-f the children, and to make suitable allowance for the support of the wife, and that ‘the court may from time to- time modify its orders in these respects.’ But the latter section clearly contemplates that the right to- alimony, as well as -other financial and property rights, shall have been presented and litigated in the action-for divorce and established by the judgment; and the provision is that, where the right to' alimony has been thus established, the amount may be changed -by a modification -of the order. But in the case at bar there is nothing to ‘modify.’ After the judgment granting the divorce the plaintiff was no longer the wife of defendant, and he owed her no longer any marital duty. Prom that time she could enforce against him no obligation not imposed by the court at the time of the judgment. In this case at bar the-judgment became final without any award of alimony, and, o-f course, the court could not afterwards ‘modify’ what never existed-. In the cases cited by -respondent the right to alimony had been established in the final decree, or the disposition of the question of alimony had been expressly reserved for further consideration. Our conclusion is that the court below had no jurisdiction to make [341] the order appealed from, and that the demurrer to the petition should have.been sustained.” Again in O’Brien v. O’Brien, 124 Cal. 427, 57 Pac. 227, and 130 Cal. 410, 62 Pac. 598, the Supreme Court of California adhered to this same rule, and said: “When the court entered its final decree without any reference to alimony, it had no further jurisdiction over the parties or the subject-matter.” In the case of McFarlane v. McFarlane, 43 Or. 477, 73 Pac. 203, 75 Pac. 139, the Supreme Court of Oregon under a similar statute has reached the same conclusion and quotes with approval from Howell v. Howell, supra. In the case of Moross v. Moross, 129 Mich. 27, 87 N. W. 1035, the Supreme Court of Michigan under a similar statute, and under very similar circumstances relating to property matters, also reached the same conclusion, and said: “Had' any provision for alimony been incorporated in the original decree, there can be no doubt that under this statute the court would have the power to grant a further allowance now. We think the court was not in error in holding that under this statute he had no power to grant alimony.”
The original decree not having made any allowance of or reference whatsoever to alimony or support money for plaintiff, we are constrained to the view that there was nothing in said judgment to be, or that could be, modified in relation to the subject of alimony; that by not including alimony in the original judgment such judgment became final and conclusive upon the subject of alimony; and that no power or jurisdiction existed'thereafter .in that respect. If an allowance of alimony had been ordered and adjudged to be paid to plaintiff by defendant on the said motion ánd petition to modify the original judgment; it would not have been modification at all, but the creation, of a new judgment on the subject of alimony, not theretofore existing in the cause. The continuing power to modify, comprehended in section 92, Civil Code, does not apply to any part of the original judgment in this case, but only applies to the subject of alimony, which might originally have been a portion of said judgment, but which was not.
There is also pending in this court in this same case an application on the part of plaintiff for suit money and attorney’s fees pending appeal, and also a motion to correct decision oía appéal by ■defendant from an order of the trial court allowing plaintiff suit money and attorney’s fees pending this appeal. The view we have [342] taken of this case effectually disposes of the questions involved in the two other matters in defendant’s favor, and it will serve no useful purpose to further refer thereto.
The judgment and order appealed from are affirmed.