This is an appeal from an order allowing alimony and suit money in an action for a divorce.
Plaintiff contents herself in her complaint, so far as her cause of action is concerned, with the averment of her marriage to defendant and a charge of - adultery against him. Defendant denies the marriage, and avers that the person with whom he is charged to have committed adultery is his lawful wife. He also charges that plaintiff, since her alleged marriage to him, has had illicit relations with other men.
The order or judgment appealed from was made after notice and a hearing upon which many affidavits were read, as were also depositions of the parties.
*390In addition to the showing as to her lack of means and the facilities of the defendant, the plaintiff states that she will require thirty or forty witnesses, many of them to prove that the parties have cohabited together as husband and wife, and are generally reputed to be such, and that the defendant has frequently so represented. In her deposition she states that the contract consisted simply in this, that the defendant said to her, “You are my wife.” That no witnesses were present, and that she had refused longer to live with defendant unless he married her.
These facts are specifically denied by the defendant. He admits the cohabitation, and that he has supported the plaintiff, but he avers that she is an Indian woman who had, prior to his relations with her, been kept by many other men, by one of whom, Gibbs, she had a son, Thomas H. Gibbs, who makes an affidavit on her behalf in this case. Defendant also states that since she commenced living with him she has several times left him, living with other men, and that she sometimes went with the Indians to their fandangoes, and returned when she chose. He denies that either ever supposed the relations to be matrimonial, or that he ever called her wife, or represented her to be such. He says that he never even spoke to her upon the subject, but he admits that he supported her and her son.
Thomas H. Gibbs, the illegitimate son of the plaintiff, corroborates the statements of his mother, and says he “was always told and led to believe by said John B. Hite that plaintiff was the wife of said John B. Hite.”
Plaintiff also read the affidavit of one James D. Westfall, who deposed that on one occasion defendant introduced plaintiff as his wife, and also that the parties were generally reputed to be husband and wife. This constitutes the evidence of plaintiff upon the issue of marriage.
The defendant, in addition to his specific denial, read the depositions of ten other persons, all of whom depose that they were intimate acquaintances of both parties and well acquainted in the neighborhood where they lived. They unite in saying that neither party ever claimed to be married to the other, and they were not, at any time, reputed to be husband and wife. Some of them corroborate other statements made by defendant *391as to illicit relations of plaintiff with others. In addition, the reputation of Gibbs, plaintiff’s son and main witness, was attacked.
Appellant contends that the showing was insufficient to justify the action of the court in granting alimony. The testimony of plaintiff in regard to the contract of marriage was in itself quite unsatisfactory, especially when taken in connection with the charge in defendant’s affidavits, which she does not deny, that she had, before her cohabitation with defendant, and even since, had improper relations with other men. Under such circumstances it is difficult to believe that an Indian woman would object to further relations except upon condition of marriage. The positive denial of the defendant is certainly sufficient to overcome this testimony under such circumstances. The matter must then depend upon the evidence of common repute, and no one would contend that the plaintiff did show a common, uniform, and undivided repute of marriage.
But I think it evident that the court did not determine the question of marriage at the hearing. The judge doubtless adopted the views of plaintiff’s counsel upon the subject and concluded that it was only necessary to hold that plaintiff had by .her affidavits made out such a case as would throw the burden of proof upon the husband.
To justify alimony, marriage must be admitted or proven. Upon this subject there is no difference in the authorities. Plaintiff’s counsel contends that it is proven, within the meaning of this rule, when the wife upon her showing makes a prima facie case, regardless of the denials or proof produced by the husband. He says it is a novel proposition that on the hearing for temporary alimony plaintiff must produce a preponderance of evidence. He claims this would be equivalent to saying: “Prove your case by a preponderance of evidence, and then you shall have an allowance to enable you to make such proof.” He also says: “In this case the plaintiff made a prima facie case, and if the defendant had produced a hundred witnesses in an attempt to overcome her affidavits the result would be the same. Indeed, it would be only stronger reason for allowing her means sufficient to procure the evidence which she and her counsel, *392who had talked with the witnesses, say she can produce, if given the means to do so.”
And this, I think, is really the question in the case: Was it sufficient to entitle the plaintiff to alimony and suit money for her to make by her own showing a prima facie case ? I believe there is no authority for that position. If the marriage were admitted, then, upon a showing of the wife's necessities and the faculties of the husband the allowance is almost a matter of course. It is otherwise when the marriage is denied. Then, before alimony can be allowed, the marriage must be proved, and a prima facie showing made by the wife when there is a counter showing is not sufficient. The judge should be satisfied from the entire proof made of the fact of marriage. Unless upon that question the husband has had his day in court and a hearing, if alimony is allowed, his property is taken without due process of law.
This precise question has not been considered, or even suggested, . in any case to which my attention has been called, except in McKenna v. McKenna, 70 Ill. App. 340. It was there said that in such case—when the marriage is denied—the order cannot properly be made “until a hearing has been had and the court upon it finds that the relation of wife and husband exists.”
The hardships which might result from either doctrine is there very tersely stated. The learned judge quotes from Schonwald v. Schonwald, 1 Phill. Eq. 219, to the effect that it is better when a woman makes oath of the fact of marriage to make an allowance, although the oath may turn out to be false, than that a wife may be in danger of starvation “if a brutal husband makes oath denying the marriage, which may turn out to be false.” To which the Illinois judge replies that “the more accurate statement would be that it is better to compel any man to pay temporary alimony and expenses of suit to any unman who may see fit to make oath that he is her husband, however strongly he may deny the allegation, rather than to allow her to be in want of money which he has.”
Whatever hardships may result, the court cannot lawfully take by final decree money from A and give it to B, whatever may be the necessities of B, when A disputes the facts upon *393which his liability is made to depend, without a trial and a determination of the issues made. The hardship to B cannot modify the imperative rule of law and the absolute constitutional guaranty. It is not such a trial, and there can be no such finding, when a man is merely called into court to see whether one claiming to be his wife has in her pleadings and affidavits made a prima facie case. He must he heard and be allowed to submit evidence which must be considered in determining as to the fact of marriage.
But that opportunity need not be on the trial of the case itself. The application for alimony, though it cannot be considered a separate suit, is a proceeding for a separate judgment, which, when granted, has nothing to do with the final judgment in the case, and will not be affected by it. It is a final judgment from which an appeal may be taken. (Sharon v. Sharon, 75 Cal. 1.)
To satisfy the requirement of due process of law it is not always necessary that such a trial should be afforded as is had in ordinary suits in courts of justice. The hearing allowed must be such as is practicable and reasonable in the particular case. (Cooley's Constitutional Limitations, 434. See, also, Ex parte Ah Fook, 49 Cal. 406; Lent v. Tillson, 72 Cal. 404.) Cooley says the opportunity to be heard must he such as “the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as these maxims prescribe for the class of cases to which the one in question belongs.”
It has been the practice to determine as to the allowance of temporary alimony upon motion with notice and upon affidavits. The defendant is thereby afforded an opportunity to be heard.
Many cases are cited by respondent’s counsel which he contends hold that all that is required on the part of the wife to justify an allowance of alimony is that she, by her showing, shall make such a case as upon a trial of the issue would cast the burden upon the husband. It is not-necessary to review all the cases, hut the case of Brinkley v. Brinkley, 50 N. Y. 184, 10 Am. Rep. 460, is much relied upon, and concerning it a few remarks may be made. That case has some likeness to this. A contract marriage was alleged, with subsequent cohabi*394tation. The wife alleged that defendant on many specified occasions introduced her as his wife, that they were received as husband and wife by reputable acquaintances, and such was their common reputation. The husband denied the marriage, and that he had by word or act at any time or place given the least foundation for the supposition or charge that plaintiff was his wife. He denied that their cohabitation was matrimonial, but averred that plaintiff was of unchaste character and person, and her relation with defendant was libidinous and unsanctioned by law. In other words, he admitted the cohabitation, claimed that it was meretricious from the beginning. Judge Folger did not say that this was not a denial of a fact essential to consti-. tute marriage, but the contrary. Cohabitation, and holding out to the world that the persons so cohabiting are married, and general reputation, though all admitted, do not of themselves constitute marriage. But they authorize the presumption of the other fact, to wit, that the cohabitation was with matrimonial intent. This last fact was denied by Brinkley. The court did consider the affidavits of defendant, but concluded that they did not overcome the case made by the plaintiff. The judge did say that the question was not whether the evidence would be sufficient tó justify a final decree, but whether “the proofs of the parties give reason to apprehend that upon a trial of the issues between them there is the fair probability that the plaintiff will maintain her allegations.” That is, does the evidence submitted by both show that probably plaintiff will prevail? I do not understand how this could be unless there was upon that, hearing a preponderance of evidence in favor of marriage, although, inasmuch as the trial was not as complete nor the evidence of as high a grade as upon the trial of the issues in the case, it would not justify a final decree or a finding which would be an estoppel.
Judge Folger evidently thought that when Brinkley admitted that they had cohabited as husband and wife in the face of the world, and had associated with intimate acquaintances who were reputable people, as though the relation was honorable, that it raised a presumption of marriage not overcome by the general denials of the defendant and his claim that the relation was meretricious. Innocence and morality are to be presumed *395rather than the opposite. This is put very strongly by Judge Folger. He says the defendant admits facts and circumstances presumptive of marriage, but says of them “that though apparently proper and rightful, they were but the cover for a meretricious and libidinous connection, begun and continued in impurity,” and that the issue was whether the cohabitation was honorable and matrimonial, or “the unsanctioned foregathering of a lecher and a wanton.”
This view was taken of that case in Collins v. Collins, 71 N. Y. 269. There the wife made, beyond doubt, a prima facie case, but the husband averred that the de facto marriage, which he admitted, was void, and the court held that it was error to allow temporary alimony until that question was settled.
The principal difference between this case now in hand and the Brinkley case is, that this defendant denies that he ever represented the plaintiff to be his wife, or that they were reputed to be such. In the Brinkley case these facts were admitted.
We are not called upon here to say that it is necessary, in order to justify the allowance of temporary alimony, that a marriage de jure must be shown. The rule upon this subject is discussed by Mr. Bishop in his work on Marriage, Divorce, and Separation, section 922 et seq. All the evidence here tending to show marriage at all tends to prove a marriage de jurej and such was also the fact in the Brinkley case, although counsel seem to have understood that case differently.
I think the superior court did not intend to hold upon all the evidence before it—that of defendant as well as that submitted by plaintiff—that there was a preponderance in favor of the fact of marriage; and, if it must be held that it did so adjudge, there was a plain abuse of discretion.
Judgment and order reversed.
Van Dyke, J., and Henshaw, J., concurred.