Finn v. Finn

17 N.W. 739, 62 Iowa 482

• Court: Supreme Court of Iowa
• Decided: December 13, 1883
• Status: Published

Opinion

Day, Ch. J.

This court has held that a court of equity will entertain an action brought for alimony alone, and will grant the same, though no divorce or other relief is sought, when the wife is separated from the husband on account of conduct on his part justifying the separation. Graves v. Graves, 36 Iowa, 310. It is said that this court has never gone beyond the doctrine of this case, and has never held that the husband could be required to furnish the wife the means of prosecuting such action. But such a holding seems to be but a mere corollary of the decision in Graves v. Graves, supra, for it would be but mockery to allow the wife the right to maintain an action for separate maintenance, and, at the same time, deny her the means of prosecuting it. Ordinarily the joint accumulations of the husband and wife are in the possession and under the control of the husband. This is the foundation of the equitable rule which requires the husband to furnish the wife the means of prosecuting or defending an action for divorce. And, if an action for separate maintenance can be maintained, there is just as much reason and just as much necessity for requiring the husband to furnish the means for prosecuting it, as for requiring him to furnish the means for prosecuting an action for divorce. It is said that there is no statute authorizing the court to require the defendant to pay money to enable the plaintiff to j>rosecute an action of this kind, as there is in the case of a proceeding for divorce. See Code, § 2226. Neither is there any statute authorizing the wife to institute an action for alimony where no divorce is sought. Yet this court held that, upon well settled equity principles, and upon considerations of public policy, such action might be maintained. The same principles of equity and considerations of public policy authorize a court to require the husband to provide the means of prosecuting such action, when instituted. Specific statutory provision is not essential to the exercise of this power. The court did not err in making the order complained of.

Affirmed.