
    Coffman, Admr., et al. v. Finney, Admr., et al.
    
      Decree of divorce — Judgment for alimony debt against defendant’s estate — Death of parties during appeal to circuit court — Cause survives in favor of representative of deceased plaintiff.
    
    1. Where a decree of divorce has been pronounced in favor of a wife for the aggressions of the husband, the right to alimony out of his real and personal property becomes vested by force of the statute, and a judgment for the same is thenceforth a debt against the husband, subject only, in case of appeal, to variation as to amount.
    
      2. Where, in such case, the husband appeals the cause to the circuit court, and, pending appeal, both parties die, the cause survives in favor of the personal representative of the deceased plaintiff and against the personal representative of the deceased defendant.
    (Decided June 25, 1901.)
    Error to the Circuit Court of Preble county.
    At the October term, 1898, of the common pleas of Preble, Lucy Campbell was divorced from Frank W. Campbell, for his aggressions (drunkenness and cruelty), and the defendant was adjudged to pay plaintiff $2,000, as alimony, for which execution was awarded, but if, within thirty days, the defendant should convey to plaintiff certain real estate owned by him the same should be accepted by her as satisfaction of the alimony, and if from thirty days the; defendant fails to pay the $2,000, and also fails to make conveyance, then the decree to operate as such conveyance. The plaintiff was restored to her maiden name of Lucy Gay, and judgment rendered in her favor for costs. Without satisfying the alimony or costs the defendant appealed, giving bond in $800. On May 17, 1899, and while the appeal was pending in the circuit court, the defendant shot and killed the plaintiff and her sister, and then .himself. Soon thereafter, Louis Finney, defendant in error, was appointed administrator of Lucy Gay, the plaintiff below, and W. H. Coffman, plaintiff in error, was appointed administrator of F. W. Campbell, defendant below. Thereupon Finney, as such administrator, filed in the circuit court. a supplemental petition, joining the heirs of Lucy Gay as plaintiffs, and making W. H. Coffman, administrator, and Hattie Johnson, daughter of F. W. Campbell and his sole heir, defendants, and praying that the case may proceed to judgment, that alimony be allowed as prayed in the original petition, and as granted by tbe court below, and for all proper relief. The defendants interposed a motion to strike off the supplemental petition, and that being overruled, a demurrer, which was also overruled. Defendants then filed an answer, and-the cause was tried on appeal in the circuit court, resulting in a finding and judgment for Finney, as administrator, against Coffman as administrator, in the sum of $2,000, together with costs, to be levied on the property of the intestate. Motion for new trial was overruled, a bill of exceptions taken, and the defeated party comes here on error.
    
      Risinger & Risinger and W. A. Neal, for plaintiffs in error.
    The authorities are that upon the death of either party to an action for alimony or divorce, or both, the suit abates. 2 Bishop on Marriage and Divorce, Sec. 363, and Sec. 437; Clark v. Clark, 6 Watts & S. (Pa.), 85; Wallingford v. Wallingford, 6 Har. & J. (Md.), 485; Glenn v. Glenn, 7 T. B. Monroe (Ky.), 286; Gains v. Gains, 9 B. Monroe (Ky.), 295; Wrenn v. Wrenn, 7 Ill., 72; McCurley v. McCurley, 60 Md., 185; Swan v. Harrison, 2 Coldw. (Tenn.), 534; Bishop on Marriage and Divorce, Secs. 549 and 550; Rogers v. Wenn, 6 Hide, 293; Shafer v. Shafer, 30 Mich., 164; Francis v. Francis, 61 Gratt. (Va.), 383.
    We claim that the appeal, in effect, vacated the judgment of the common pleas for alimony. The circuit court seemed to take the view that it was a mere matter of affirming or reversing the lower court. That the judgment of the lower court was still alive, but that execution on it was merely suspended.
    We insist that the legal effect of an appeal is to vacate and entirely set aside the judgment of the lower court, when the appeal is sustained. And the appeal is understood to be sustained when the proper undertaking is given in a case that is appealable.
    We are aware that Sec. 5235 of the statute provides that “When an appeal is taken, and bond given, the judgment is thereby suspended,” but this court has held that when an appeal from the common pleas to the circuit court is sustained, it not only suspends, but entirely vacates, the judgment of the lower court. Hull Bros. v. Bell Bros., 54 Ohio St., 228; Long v. Hitchcock, 3 Ohio, 274; Ludlow v. Kidd’s Exrs., 3 Ohio, 541.
    This cause was to be tried and such a decree rendered by the circuit court as the condition and circumstances of the parties at the time, might warrant. That is, at the time of the final trial or decree.
    The changed condition of the parties at the time of the last hearing, if there was any change, should be taken into consideration,: in'fixing the amount of alimony awarded. King v. King, 38 Ohio St., 370.
    
      James A. Gilmore and G. B. Gilmore, for defendants in error.
    Our view is that under Sec. 5144 an action for dower would not abate upon the death of the plaintiff, but would survive, subject to be revived for all purposes, and Sec. 5145 was enacted to limit the purpose for which the action could be revived. The fact that no limitation is made as to an action for alimony is against the claim of counsel for plaintiff in error. Such action survives and may be revived for all purposes, without any such limitation as is fixed by Sec. 5145 as to an action for dower.
    At common law an action for alimony abated upon the death of either party, as did all personal actions; but the common law does not prevail in Ohio, in the matter of abatement of actions. Our legislature has prescribed in express terms just what actions abate upon the death of one or both the parties, all other actions survive and may be revived. Ohio & P. Coal Co. v. Smith, 53 Ohio St., 313.
    In our judgment counsel for plaintiff in error misapprehend the nature of a decree for alimony. They seem to adopt the view that alimony is decreed solely for the maintenance and support of the wife; that maintenance is all she can demand, and all the court can give; and their entire argument is based on this erroneous idea. Sec. 5699, Rev. Stat.
    The court is imperatively required to allow her alimony. There is no discretion given, as to making the allowance, but the amount is left to the discretion of the court and must be reasonable.
    All property rights between the plaintiff and the defendant became fixed wfien the divorce was granted. The divorce was granted the plaintiff in this case by reason of the aggression of the husband, and her right to a portion of her husband’s estate is a result of the divorce decree. The court fixed that amount at f2,000. If the action nowT abates, she is deprived of that reasonable part of her husband’s estate that the statute says she shall have, and which the court decreed to her; and she, or her estate, loses a large amount of her own money, which is shown to have constituted a part of his estate.
    Whatever may be the viewr of the courts of other states as to the nature and effect of a decree for alimony, in Ohio it is in effect a judgment in favor of the wife.
    Section 5703, in the Divorce and Alimony act, calls it a judgment. Conrad v. Everich, 50 Ohio St., 476; Moore v. Rittenhouse, 15 Ohio St., 310; Webster v. Dennis, 2 Circ. Dec., 566; 4 C. C. R., 315; Carr v. 
      Risher, 28 N. Y. St., 260; Downer v. Howard, 44 Wis., 82; McCown, Admr., v. Weiskittle, 6 Dec. (Re.), 805; 4 Bull., 803; Wren v. Moss, 7 Ill., 72; Shafer v. Shafer, 30 Mich., 163; Israil v. Arthur, 6 Colo., 85; Danforth v. Danforth, 111 Ill., 236.
    Where one party dies after a decree of divorce is rendered or after an appeal is taken, the suit may be revived in the name of the executor or administrator, and all the heirs and other parties who may be affected by a reversal of the decree must be joined, as they are necessary parties. 7 Enc. Pl. & Pr., 124, 5.
    Where in a suit for divorce, a decree for alimony has been rendered granting alimony to the wife, on the death of the defendant pending an appeal from, such decree, the suit abates; but the decree may be affirmed in order to entitle the wife to alimony up to the date of the death. Francis v. Francis, 31 Gratt., 283; Lockwood v. Krum, 34 Ohio St., 1.
    We maintain that the Ohio decisions referred to establish two propositions:
    1. The decree for alimony in this case in the court of common pleas is a judgment against Prank Campbell, not in favor of his wife, but in favor of Lucy Gay, a feme sole, she having been decreed a divorce by reason of the aggression of her husband, and restored to her maiden name, Lucy Gay,
    2. The plaintiff below was, at the time of the death of the parties, a creditor of the defendant to the amount of f2,000; and had a lien on his real estate for that sum.
    If these propositions are true, there is neither justice, reason, nor logic in the claim that the defendant could lessen his obligation to his former wife by putting in an appeal bond, and murdering his creditor, or relieve his own estate from liability by suicide.
   Speak, J.

The contention of plaintiffs in error, in support of their claim of error, is, that the suit pending in the circuit court being one for alimony, was strictly personal, and upon the death of both the plaintiff and the defendant, the suit abated, and could be revived neither in favor of- the plaintiff nor against the personal representative of the defendant. And the whole- controversy centers about this proposition, Text books, and decisions of courts outside of our state, are cited in support of it, all of which have been examined and considered. But we find little to aid us in the array of cases cited. The question is not what is the law of other jurisdictions, but what is the law of Ohio on the subject.'

The final disposition of the case in the court of common pleas, which divorced the parties, left the plaintiff in the attitude of a feme sole, with an award of alimony in gross, which was, in legal effect a judgment. It was.a money claim, a debt collectible by execution, and operated per se as a lien on all the real estate of the defendant in the county. Moore v. Rittenhouse, 15 Ohio St., 310; Conrad v. Everich, 50 Ohio St., 476. And while 'the trial in the circuit court would be a trial de novo as to the amount of the alimony, yet had the appeal been dismissed the judgment of the common pleas would have been left in full force and the lien of the judgment unimpaired. The effect, therefore, of the appeal was not in any wise to unsettle the decree of divorce, nor to vacate the judgment for alimony, but simply to suspend it. It was founded upon a claim established by the statute. Upon the declaration of divorce by the common pleas for the aggressions of the defendant the law vested the right in the plaintiff to an allowance as alimony from the defendant’s real and personal property.^ This right was an absolute one. “Shall be allowed” is the imperative language of the statute. To the court was left simply the fixing of the amount; it must be such as the court should deem reasonable. This provision, unlike alimony pendente, was not for her temporary support; it has been held to be in the nature of a division of property arising out of her former relation as wife and because of his aggressions. Had she died after the decree and no appeal been had no one would doubt that the judgment would have been available to her personal representative just as other indebtedness due to her, and collectible by her representative. This being the nature of the claim, and the form of the judgment which embodied it, why should it not survive? If the administrator of the divorced plaintiff could have proceeded to collect the claim as a judgment, why, in reason, should he not have the right to prosecute the collection of the claim, a claim which the law had established, in any court to which it would or might be carried? As before stated, the right had been fixed by the statute itself upon the pronouncement of the divorce, and the ultimate effect of the appeal would seem to be only to give the right to the defendant to obtain the judgment of another tribunal upon the inquiry as to what amount as alimony was reasonable. It is difficult to see how the appeal could change the nature of the claim itself, for the appellate court had no jurisdiction of, or power to inquire into, the matter of divorce and, as we have found, the divorce fixed the plaintiff’s right to alimony.

But if there be doubt of the proper answer to the contention of plaintiffs in error when reviewed from the standpoint of principle, it seems quite clear that all doubt vanishes when we give effect to our statute, section 5144. It provides that: “Except as otherwise provided, no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto, except an action for libel, slander, malicious prosecution, for a nuisance, or against a justice of the peace, for misconduct in office, which shall abate by the death of either party.” It is not by statute “otherwise provided” as to alimony. It is insisted, however, that the cause pending in the circuit court was not a civil action, and hence this statute does not save it. But we need hardly puzzle ourselves with this proposition, for thé suit in the circuit court, if not an action in the strict sense was at least a proceeding, and the statute ip terms covers that kind of a suit.

Complaint is made that the judgment of the circuit court is not justified by the evidence. This court is not concerned with that question. The circuit court was qualified properly to weigh the evidence, and its conclusion in that regard is final.

We are of opinion that the claim of Lucy Gay for alimony, at the time of her decease, was a debt against the defendant, fixed as to the liability, though subject to variation as to amount, and that the cause survived in favor of her administrator and against the administrator of her former husband.

Judgment affirmed.

Minshall, O. J., and Burket, Davis and Shauck, JJ., concur.  