dissenting.
Many cases outside of Ohio ■ are cited, which hold that the court has the right long after term, upon showing of fraud inducing a decree of divorce, to set aside that decree as being void and of no effect.
If we should so hold in this case it would not reach the ultimate question presented. It is necessary, to meet the prayer of plaintiff’s petition, that the trial judge go one step further, namely, make an award of alimony. The petition prays that the decree of divorce be vacated but does not aver that it was induced by fraud.
An award of alimony to the wife can only be made against living husband. If the court nas jurisdiction of the person against whom the relief is sought and he is alive, the award may be made at the time of the decree, either as alimony alone or alimony in conjunction with the divorce. It would not be urged that an original action could now be instituted lor alimony because there is no proper party to respond as a defendant. It is not claimed that the facts upon which the right to assert alimony are grounded, were known during the lifetime of William B. Kight. It thus follows that at no time while he was living could alimony have been asserted against him.
All of the cases cited by plaintiff are those wherein the court merely recognized the void or voidable character of the divorce decree. The decree being void and so adjudged, certain beneficial results attended, among which was the right of the plaintiffs to property of their deceased spouses, which at all times subsisted.
Here there is no claim of a void decree and it is necessary that an affirmative finding and order now be made by a court before the plaintiff is entitled to alimony. Such an order can only be made when and if the parties are in the relation of husband and wife. If, during the lifetime of the husband, the divorce decree had been declared void, then a court could have permitted an amendment to the petition and s prayer for alimony, and upon proper showing, could have ordered such alimony; but when the husband died the right to make any award of alimony ceased.
We do not deem it necessary to take up and discuss all of the eases cited for the reason that none of them, in our opinion, is in conflict with the legal principle which we have followed. No ease is found where alimony as such has been awarded after a party to the marital relation is dead. This fact, while not conclusive of the question before us, is certainly persuasive.
A typical case cited by appellants, presenting one of the best considerd opinions, is that of Dennis v Harris, Admx., et al., 179 Ia., 121. The wife there secured a divorce for the aggression of her husband and was awarded $15,300.00 permanent alimony. Many years thereafter and after the husband’s death, she instituted her action, averring that the whole proceeding of divorce was the result of dure&s practiced upon her by her husband. She prayed that the decree of divorce be set aside and that she be adjudged entitled to the same portion of the estate of the deceased as she would have been entitled to were she his widow, (the amount of alimony received to be taken into consideration), and, if this relief should not be awarded, that such additional amount as should be deemed equitable be allowed to her as alimony. The court set aside the decree, *96but thereafter did not grant the alternative relief sought, oameiy, further allowance of. alimony. The court found that the plaintiff was the instrument of her husband’s will in obtaining the decree. It should be noted, as we have before observed, that when the decree of divorce was set aside the plaintiff became the widow of her deceased husband, and by force of that relationship she was entitled to the share of his estate less the alimony which she had already received.
In Weidman v Weidman, 57 Oh St 101, the plaintiff, a divorced woman, averred that she v/as induced by her husband to refrain from charging him with adultery in a divorce proceeding and from disclosing certain other disgraceful facts concerning him of which she had knowledge, by the promise to pay her money from time to time amply sufficient to support her and her daughters; that she instituted her action for divorce on the ground of extreme cruelty, and was given the custody of her minor children; that being young and inexperienced she relied upon her husband’s promise, applied for and obtained the divorce without any decree for alimony. The husband failed to observe his promise to pay her money for her support and the support of her children. She sought to maintain a separate action for alimony. The court held that,
"Where a wife obtains a divorce from her husband in this state without a decree for alimony, he being personally served with process, she can not thereafter maintain a' separate action against him for alimony."
At page 103 the court says in the opinion:
"The action for alimony is statutory, and by § 5702, GC, Revised Statutes, it is provided that, ‘a wife may file her petition for alimony alone.’ After an absolute divorce in an action in which the court had jurisdiction of both parties, she is no longer ‘the wife’, and does not come within the provisions of the statute. Strictly speaking the same is true in eases in which the divorce was obtained by the husband in an ex parte proceeding but as the wife in such cases has not had her day in court as to alimony, nor as to her equitable interest in his property, this court, by a liberal construction in her favor, has allowed her in such cases to maintain a separate action against her divorced husband for the recovery of alimony, which is in its nature an equitable allowance out of his property. But the principle can not be extended so as to allow a woman who has been divorced in an action in which the court had jurisdiction of her person, to waive alimony in the divorce proceedings, and then years afterward maintain a separate action therefor.”
In the Weidman ease the husband was living when the action was instituted and is clearly determinative of the question here presented if the averments of the petition of Caroline Weidman as to the representations of her husband can be classified as fraudulent representations. They seem to charge legal fraud. The Weidman ease has been approved many times by Ohio courts and several times in recent years specifically by this court. The only distinction that can properly be made between the instant case and the Weidman ease is that here it may be claimed that it is not sought to maintain a separate action for alimony or an action for alimony subsequent to the divorce decree, but as though the action for alimony was being considered as of the date of the original decree. There are so many obvious difficulties in the way of such an interpretation that it is not practicable to so consider it.
If we could hold that the plaintiff was entitled to relief as prayed, it would indeed be doubtful if the trial judge would award to the plaintiff a sum of money in alimony representative of the value of the $4000.00 value of the bonds and $1000.00 value of the diamond ring which plaintiff claims was her property and had been converted by the defendant to his own use. If this were her property and he converted it to his own use, it may be she would have a claim against his estate for the value of the property thus converted. However, this does not avoid the question of the right of plaintiff to have an award of alimony at this time under the averments of her petition.
I do not believe the position of the majority that because alimony is not mentioned in §11397, GC, such a cause of action does not abate by the death of either party. Neither is divorce mentioned but it would not be contended that the right to divorce survives the death of either party.
Whether or not the plaintiff might have some form of equitable action against the estate of her former husband, query? Alimony is a statutory proceeding and contemplates an award from one living spouse to another and the cause of action does not survive the death of either spouse.
The judgment of the trial court should be affirmed.