168 Wade v. Yazoo & M. V. R. Co. (Miss.)... 179 Wadsworth, Nelson v. (Ala.).. 553 Yazoo Delta Lumber Co. v. (Miss.) 597 Yazoo & M. V. R. Co., Arbour v. (Miss.).. 9 Yazoo & M. V. R. Co. v. Cohn (Miss.).... 659 Eastland Page Yazoo & M. V. R. Co. v. Hare (Miss.)... 648 Page Yazoo & M. V. R. Co., Thompson v. (Miss.) 825 982 384 984 986 ..1006 209 See End of Index for Tables of Southern Cases in State Reports THE SOUTHERN REPORTER VOLUME 61 WINKLER ▾. WINKLER. (No. 15,895.) 1. DIVORCE ( 238*) — ALIMONY - POWER OF The that appellant had left her and his little children in destitute circumstances, and that she was supporting herself and children out of her earnings of about $6 per week. court rendered a decree granting a divorce, and ordered appellant to pay the sum of $50 as alimony pendente lite and $20 per month as permanent alimony. Later, appellee petitioned the court, stating that appellant had failed to make the payments of the alimony, and asking the court to adjudge him in contempt, and require him to furnish security for the payments. AWARDING Under Code 1906, § 1673, authorizing the court granting a divorce to make in its discretion orders touching the maintenance and alimony of the wife, the court may in a proper case decree alimony to the wife, though the husband is granted the divorce. (Ed. Note.-For other cases, see Divorce, Cent. Dig. 88 670-672, 703; Dec. Dig. § 238.*] 2. DIVORCE (§§ 211, 235, 286*) ALIMONY-DISCRETION. The award of temporary and permanent alimony is within the sound discretion of the trial court, and will not be disturbed on appeal, unless it is erroneous on its face or unjust to either party, or oppressive. [Ed. Note. For other cases, see Divorce, Cent. Dig. $$ 613, 665, 769, 770; Dec. Dig. 88 211, 235, 286.*] 3. DIVORCE (§ 286*) — AWARDING ALIMONY · DISCRETION. The court en tered an order in accordance with the petition. Appellant then moved the court to vacate and annul the decree of the court allowing the alimony, and appealed to this court from the action of the chancery court in awarding appellee alimony in the original decree for divorce. The contention of appellant is that the court could not allow the appellee, the wife, alimony in a decree sustaining a bill for divorce filed by appellant, the husband. Where the pleadings in a suit by a husband for divorce showed that the wife was in need of support for herself and the four chil[1] It is provided in our statute (section dren of the marriage, the eldest of which was six years, the allowing to her of $50 as tempo- 1673, Code of 1906) that "when a divorce rary alimony and $20 per month as permanent shall be decreed from the bonds of matrimoalimony would not be disturbed, in the ab-ny the court may, in its discretion, having sence of the testimony. [Ed. Note.-For other cases, see Divorce, Cent. Dig. § 769, 770; Dec. Dig. § 286.*] Appeal from Chancery Court, Jones County; Sam Whitman, Chancellor. Suit by Max Winkler against Elizabeth Winkler for divorce. From so much of the decree as awarded alimony to the wife, plaintiff appeals. Affirmed. W. S. Welch, of Laurel, for appellant. Bullard & Gavin, of Laurel, for appellee. * regard to the circumstances of the parties and the nature of the case as may seem equitable and just, make all orders touching the maintenance and alimony of the wife, or any allowance to be made to her." The court by the same statute is authorized to "change the decree and make from time to time such new decree as the case may require." The court is also authorized to require sureties for the payment of the alimony allowed. It has been stated as a general rule that alimony will not be alREED, J. Appellant filed his bill for di- | lowed the wife unless the decree for divorce vorce against appellee on the sole ground of is in her favor. The rule, however, has been desertion. Appellee answered, making a gen- modified in many instances. In 14 Cyc. 767, eral denial, and stating that she had four it is said: "In many jurisdictions, however, children by her marriage with appellant, the the general rule has been modified by stateldest of which was then only six years old. utes expressly or impliedly providing that *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes permanent alimony may be awarded in fa- | sion for her out of his estate. Jee v. Thurvor of the wife although a decree has been rendered against her." On page 768 of the same volume it is said that if "the husband was at fault and materially contributed to his wife's desertion, or other misconduct, he may be required to provide for her support although he obtains a divorce from her." [2] It is the general rule that the matter of awarding permanent alimony as well as temporary alimony is within the sound discretion of the court, and is not subject to revision and correction on appeal, unless it is erroneous on its face, or unjust to either party, or oppressive. 14 Cyc. 769. It has been decided that a wife, though not entitled to a divorce, may have alimony when a divorce is decreed against her. Coon v. Coon, 26 Ind. 189; Hedrick v. Hedrick, 28 Ind. 291. The statute upon which the Indiana cases are based provides that "the court shall make such decree for alimony in all cases contemplated by this act as the circumstances of the case shall render just and proper." Our statute is as broad in its scope. In the case of Graves v. Graves, 108 Mass. 314, in which it was decided that alimony may be awarded to the wife upon granting to the husband a divorce for her fault, the court in discussing the subject said: "The question whether she or her husband was the guilty party is doubtless an element, and an important element, in determining whether alimony should be awarded to her, but it is not conclusive. She may have been guilty of such a breach of the marriage obligation as to entitle her husband to a divorce; and yet it may not be just, if her husband is comparatively rich or capable of earning money, and she is poor or weak, that she should be turned out into the world without any means of livelihood but her own exertions. The questions whether she should be allowed any alimony, and of the amount of such allowance, are, in every case falling within the enumeration of the statute, whether she is the party offending or the party injured, within the discretion of the court, upon a consideration of all the circumstances of the case. Such has been the construction always given to our statutes by the justices of this court, and to similar statutes by the courts of other states, whenever the powers of the court to grant alimony were not clearly limited by the Legislature to the case of a divorce in favor of the wife"-citing Sheafe v. Sheafe, 4 Foster (24 N. H.) 564; Sheafe v. Laighton, 36 N. H. 240. It seems that in the Massachusetts statute there was provision for a divorce on the ground of separation, and a further provision that upon granting a divorce the court may decree alimony to the wife. The English Parliament, upon granting a divorce to a husband, even on the ground of adultery low, 4 D. & R. 11. While recognizing the general rule that alimony should follow a decree in favor of the wife, and that this rule should generally control, still, viewing the modifications thereof, taken in connection with the provisions of our statute, we believe the court may in proper cases decree alimony to the wife, even where the husband is granted the divorce. [3] In the present case the chancellor, in the exercise of his discretion, and having regard for the circumstances of the parties and the nature of the case, decided that it was equitable and just to decree aiimony to the wife. There is no testimony given in the record. The pleadings show that she was in need of the amount for support of herself and her four children, the fruit of the marriage with appellant. By reason of the absence of testimony, there is nothing before us by which we can review the action of the chancellor, and, in the absence of the proof, we assume that he acted with proper discre tion. It does not appear from anything be fore us that he abused his discretion. The statute permits the allowance of alimony when a decree of divorce is rendered. We are led to conclude that in this case the chancellor was correct in awarding alimony in the original decree. Affirmed. STATE ex rel. DIST. ATTY. v. WHARTON. (No. 16,346.) (Supreme Court of Mississippi. March 3, 1913.) 1. MUNICIPAL CORPORATIONS (8 1432, New, vol. 16 Key-No. Series)-OFFICERS-QUALIFICATION AFTER ELECTION. Whether the failure of an officer of a municipal corporation conducted under a special charter, and not under the general laws governing municipalities, forfeits his office by failure to qualify within the time provided by the charter, is controlled by the charter, and not by the general laws relative to the qualifications of public officers. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 315.] 2. MUNICIPAL CORPORATIONS (§ 1432, New, vol. 16 Key-No. Series)-OFFICERS-QUALIFICATION AFTER ELECTION. The Port Gibson charter requires elected January succeeding their election. Section 22 provides that if vacancies occur, or an oicerelect fails to qualify, the board may order a special election to fill such vacancy, and that a vacancy in any municipal office to which the officer is elected or appointed by the board of mayor and aldermen may be filled by such board at any regular or special meeting. Held, that a person elected as alderman failing to qualify on or before the first Monday, but who qualified thereafter and discharged the duties and exercised the powers of such office for about 16 months, did not by the delay in qualifying forfeit his office, since the charter gives the board of mayor and aldermen discretion with regard to vacancies, and its action in permitting him to qualify after the expiration of the time limit amounted to a filling of the vacancy, or a waiver of the time limit. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 315.] Appeal from Circuit Court, County; H. C. Mounger, Judge. the town is the law of the case, and, inasmuch as the charter does not provide that a failure to qualify in the time and in the manner provided by the charter works a forfeiture of the office, this proceeding cannot be maintained. It is further contended by appellee that the charter commits to the board of mayor and aldermen the power and discretion to deal with vacancies. We have concluded that the charter of the town is controlling in this case, and that the general laws touching the qualifications of public officers has no application to the officers of municipalities operating under special legis lative charters. [2] We find no provision of the charter whereby a failure to qualify on or before the day named for so doing forfeits and vaClaiborne cates the office. It seems to be settled by the authorities that unless the law, in terms, declares a forfeiture on failure to qualify within the prescribed time, the law, which merely fixes the time for the elected officer to qualify, will be deemed directory. The rule is thus stated in 23 Am. & Eng. Ency. of Law, p. 357: "Statutes prescribing the taken, or a bond given or filed, are generally Quo warranto by the State, on the relation of the District Attorney, against Charles R. Wharton. From a judgment dismissing the cause, the State appeals. Affirmed. J. McC. Martin and C. A. French, both of Port Gibson, and Geo. H. Ethridge, Asst. Atty. Gen., for the State. Mayes & Mayes, of Jackson, for appellee. COOK, J. This case was begun upon the relation of the district attorney, by quo warranto, to oust appellee from the office of alderman of Port Gibson. The relief sought by the petition was denied, and the cause dismissed by the circuit court, and the state appeals to this court. time within which an official oath shall be held to be directory only, and a failure to comply therewith does not ipso facto forfeit the office, and, if the officer subsequently and before the commencement of proceedings to forfeit the office complies with the requirements of the statute, he is entitled to the office." The decisions of this court are in line with the decisions of other courts in holding similar laws directory. Marshall v. Appellee was elected in December, 1910, Hamilton, 41 Miss. 229; State ex rel. v. to the office of alderman. The town of Port | Lazier, 77 Miss. 146, 25 South. 153. Gibson was being conducted under a special Counsel for the state relies on Andrews charter, and was not operating under the v. Covington, 69 Miss. 740, 13 South. 853, general laws governing municipalities. The to support the theory that our statutes are charter of the town provided that the elected mandatory. The writer was of counsel in officers of the town shall qualify at any time before the first Monday in January next succeeding the date of their election. It is contended that appellee did not qualify before the first Monday in January, nor on the first Monday. It appears from the evidence that appellee did file his bond, and was sworn in as alderman, not before the first Monday in January, as prescribed by the charter, but within a few days there after. It is also said that he did not take and subscribe the oath required by the charter, nor was his bond approved by the president of the board of supervisors of the county and filed for record with the clerk of the chancery court, and from the evidence this appears to be true. The state takes the position that a failure to qualify according to the requirements of the charter ipso facto forfeits and vacates the office, and that the general laws of the state are applicable in the present case. [1] Appellee contends that the charter of the trial of this case in the circuit court, and has some knowledge of the points upon which the case went off. The facts were that Covington, although elected by the people, was not a qualified elector; he having failed to pay all taxes legally assessed against him. He was not so qualified at the time he filed the petition, nor at the time the same was heard. What the court did really decide was that Covington was by the Constitution disqualified to hold the office to which he had been elected. He subsequently did pay up all taxes assessed against him, the board of supervisors called a special election to fill the vacancy, and Covington was re-elected and inducted into office, and held the office for four consecutive terms. Section 22 of the charter is as follows: "(a) Vacancies. Should a vacancy occur at any time, or should an officer-elect fail to qualify, the board may order a special election to fill said vacancy. (b) In case any vacancy in any municipal office to which the |