delivered the opinion of the Court:
It is insisted that the court below erred in allowing alimony to enable complainant to employ counsel and otherwise prepare for the prosecution of her suit. The power of the court to make such an order is questioned, upon the ground that the statute regulating proceedings in divorce contains no express authority for the purpose, the statute only, in terms, authorizing the court to allow permanent alimony by the final decree. The only provision on the subject of alimony is found in the sixth and eighth sections of our statute, the former of which declares, that “ When a divorce shall be decreed, it shall and may be lawful for the court to make such order touching the alimony and maintenance of the wife, the care, custody and support of the children, or any of them, as from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just; and, in ease the wife be complainant, to.-order the defendant to give reasonable security for such alimony and maintenance; or may enforce the payment of such alimony and maintenance, in any other manner consistent with the rules and practice of the court; and the court may, on application, from time to time, make such alterations in the allowance of alimony and maintenance, as shall appear reasonable and proper.”
The eighth section declares, that if upon the hearing the court shall be satisfied of the expediency of decreeing a dissolu tian of the bands of matrimony it shall have power to do so, “ and to make such order with regard to the costs as it may deem right, and also, to make such order with regard to the children (if any) and the right of alimony as it may think proper.”
There seems, in the American courts, to be some conflict of authority on the question whether the courts to which jurisdiction is given over cases of divorce, in the absence of 'statutory enactment, or where, as with us, the statute only provides for the allowance of permanent alimony on granting the divorce, have authority, as incident to the power to grant divorces, to allow alimony pendente lite. It was held in Horth Carolina, that as the statute made no express provision for temporary alimony, and contained no intimation of a design that the practice of the Ecclesiastical Court of England should be followed, such alimony could not be granted. Wilson v. Wilson, 2 Dev. & Batt. 377. In pronouncing this decision, however, the court expressly reserved the question whether it would give relief, where a husband was oppressively pursuing his wife, who was without means, for a divorce, until he would furnish her with funds necessary for her defense. The cases of Harrington v. Harrington, 10 Vermt. 505, and Hazen v. Hazen, 19 id. 603, are to the same effect. But the two latter cases are expressly overruled by the case of Le Barron v. Le Barron, 35 Vermt. 365, and the contrary doctrine is clearly and explicitly announced.
In Hew York, under a statute, it is true, which provides that the , court may make an allowance to the wife, to enable her to carry on the suit, when brought for a divorce or separation, but which does not in terms extend the allowance of ad interim alimony, even in those cases it is held that the court has power to grant such alimony. In North v. North, 1 Barb. Ch. 244, in a suit by a husband for a divorce it was held, that the wife was entitled to an allowance from the complainant to enable her to make defense, and also to a further sum for the support of herself and her child pending the litigation. This decision was put upon the ground, that the allowance did not depend wholly upon the statute, but upon the practice of the court as it previously existed. And Chancellor Walworth, who delivered the opinion in that case, said that the court had continued to allow ad interim alimony, in matrimonial causes, in the same manner as before. 2 Barb. Ch. Pr. 265.
In Missouri provision was made by statute for permanent alimony, and also, that the court might order any reasonable sum to be paid for the support of the wife during the pend-ency of her application for a divorce; yet in the case of Ryan v. Ryan, 9 Mo. 539, which was a suit by the husband, the wife was allowed alimony pendente lite.
In Pennsylvania, in the case of Melizet v. Melizet, 1 Parsons’ Select Cases in Eq. 78, after a decree fixing the amount of alimony on a divorce, the plaintiff moved the court for a further allowance. The motion was resisted upon the ground that no such authority had been conferred by the statute. But the motion was allowed on general principles, and independent of the statute.
Without citing further authorities, we may safely say, that the general American doctrine is, that the wife may have alimany pendente lite, as well as money to defray the expenses of the suit, even in the absence of statutory provision to that effect, upon the principle that alimony is an incident to the divorce, and that the jurisdiction of the latter necessarily includes the power to enforce such a right, as a legal attendant upon the marital relation, under the circumstances under which the parties litigant are placed. Bishop on Marriage and Divorce, § 574.
Moreover, it will not be questioned that this right existed as a part of the common law jurisdiction, and we have expressly adopted the common law as a part of our jurisprudence. It is true that this jurisdiction was exercised in Great Britain in the ecclesiastical courts, but is none the less, for that reason, a common law jurisdiction, in harmony with our institutions, and essentially necessary to the attainment of justice.
This court has expressly said, in the case of Harman v. Harman, 16 Ill. 88, that we have adopted the common law in relation to the causes for which a divorce may be granted, except so far as the statute has provided a different rule. And in Hamaker v. Hamaker, 18 Ill. 139, it was said the power of the courts in this State in relation to that subject, is confined to the “ common law or common law and statutory causes.” It must be understood, then, that we have adopted all of the incidents to the exercise of this power as exercised in the common law jurisdiction of the ecclesiastical courts in Great Britain, unless restrained by statutory enactment, as the incident will, as a general rule, always attend the principal to which it is related.
The question of jurisdiction in such cases, is fully discussed by Mr. Justice Nisbet in the case of McGee v. McGee, 10 Ga. 478. In delivering the opinion of the court he said: “ I see no reason why the Superior Courts of this State have not acquired jurisdiction over temporary alimony incidentally, as the ecclesiastical courts acquired jurisdiction over alimony.” “ Alimony pendente kite is a common law right. It was an established right in England when we adopted the common law. It is no less a common law right because it grew up under the usages of the Ecclesiastical Court. What becomes of the right in Georgia % The common law, which guaranties it, has not been repealed. It is suited to our condition, and in harmony with our institutions. We have no Ecclesiastical Court. The jurisdiction which in England belonged to that court, has been transferred here, by statute, to the Superior Courts, and the manner of exercising it pointed out. Upon the subject of temporary alimony, however, our statutes are silent. Under this state of facts, I repeat the question, what became of the right ? Is it a right without a remedy ? Or rather, is not the Superior Court bound to enforce it as much as any other provision of the common law ? By transferring the jurisdiction over divorces to those courts, was it not the intention of the legislature that that jurisdiction should be exercised, except so far as the manner of its exercise is specially prescribed, and except so far as the common law is in conflict with the laws of Georgia, and genius of her institutions, according to the common law? We think it was; and that with the power to grant divorces, passed the power to enforce the common law, which gives to the wife temporary alimony. This conclusion becomes irresistible, when we reflect that if the Superior Courts cannot make this provision, it cannot be made at all.”
We are fully satisfied that the weight of authority as well as reason and justice all unite in support of the rule, that the Court of Chancery in this State, having power to grant divorces, has also the incidental power to allow temporary alimony pendente lite, and therefore, the Superior Court did not exceed its jurisdiction in granting the order complained of and assigned for error.
It is likewise urged, that the court erred in making the order for alimony pendente lite, because appellant did not have an opportunity to meet appellee’s affidavits in support of her motion. He was in court, and we do not see that he asked time or even suggested to the court that he could meet them. If he had been able to meet appellee’s affidavits he should have asked for time and shown by affidavit that he could make the proof, and that he had not had sufficient time to enable him to procure the counter evidence. But until he showed the court sufficient facts and asks for further time, he cannot complain if the court proceeded to hear the motion.
It is again objected, that the court erred in executing the decree for the payment of the alimony. That he should have been brought before the court, and interrogatories propounded and an opportunity afforded to purge himself of the contempt. It appears that the order to pay fifty dollars as temporary alimony was passed on the 25th day of March, 1865, ordering appellant to pay the money by the next Friday. It also appears that he was served with a copy of the order, but failed to make the payment. He was arrested on a writ of attachment issued out of the court, for a contempt in refusing to obey this order. He was brought into court on the 7th of April, 1865, and he then entered a motion to quash the attachment, ■upon the ground, that he was not served with notice of the intention to make the motion, or with a copy of the affidavit or rule to show cause why the attachment should not issue, and because the court did not have jurisdiction to order the payment of provisional alimony.
While in the English courts the practice requires notice to be given to the opposite party, to his attorney or some officer of the court on his behalf, before any step is taken, and while in cases of this character it is perhaps the better practice, yet it has not been regarded as indispensable in our practice. After a party has been once brought into court, the presumption is that he is present and cognizant of every step taken in the cause until it is terminated, unless there has considerable time elapsed without taking any steps in the case. Here appellant had been brought into court, had entered his appearance, had filed his demurrer and resisted the motion for alimony pendente lite only a few days previously, and was fully aware of the order and its requirements, and that he was in default under it and subject to attachment for a contempt for a noncompliance with the order. And we must presume that he was fully aware that the motion was made for the attachment, and this being so, we see no reason to say that the court erred in having him arrested and detained until the order was complied with, or till he was otherwise legally discharged. He was in court, and had he been able to purge himself of the contempt he only had to ask the court for leave to do so, when it would have been granted.
The decree of the court below must be affirmed.
jDecree affirmed.