Ecker v. Ecker

153 N.W. 864, 130 Minn. 472, 1915 Minn. LEXIS 606

• Court: Supreme Court of Minnesota
• Decided: July 23, 1915
• Docket: Nos. 19,336—(198)
• Status: Published

Opinion

Taylor, C.

Both plaintiff and defendant are residents of Hennepin county. Plaintiff sued for a divorce and the summons and complaint were served upon defendant personally. Defendant interposed no answer, and judgment was rendered granting the divorce and directing defendant to pay plaintiff $15 per month as alimony until the further order of court. Thereafter defendant made a motion to strike the provision for the payment of alimony from both the findings and the judgment. The motion was denied and he appealed.

Section 7896, G. S. 1913, provides that, “as against a defendant who does not answer, the relief granted to plaintiff shall not exceed that demanded in the complaint.” Defendant did not answer and the complaint made no express demand for alimony; and defendant contends that the above statute debarred the court from granting alimony. If the case is controlled by the above provision his contention is well founded. Sache v. Wallace, 101 Minn. 169, 112 N. W. 386, 11 L.R.A.(N.S.) 803, 118 Am. St. 612, 11 Ann. Cas. 348. This provision is found in the general practice act and applies wherever no different provision is made by some specific statute. Divorce suits are controlled and governed by a specific statute devoted to that particular subject matter; and, in divorce suits, the provisions of this specific statute supersede those of the general practice act insofar as they are inconsistent therewith. Section 7128, G. S. 1913, authorizes the court to decree alimony to the wife, “upon a divorce for any cause except that of adultery committed by the wife.” This provision, together with other provisions of the statute relating to divorce, was considered in Sprague v. Sprague, 73 Minn. 474, 76 N. W. 268, 42 L.R.A. 419, 72 Am. St. 636, and it was there held that the court had jurisdiction to determine the question of alimony, although the complaint made no reference thereto and defendant failed to answer. The facts in that case were entirely different from tbe facts in tbe case at bar, but tbe question as to whether tbe court bad jurisdiction to determine tbe matter of alimony where no reference thereto was made in tbe complaint and tbe defendant did not appear was directly involved and decided adversely to defendant’s contention. We follow that case and bold that tbe court bad power to allow; alimony in tbe case at bar.

Order affirmed.