256 P. 389 | Or. | 1927
Lead Opinion
APPEAL DISMISSED.
Allowance of suit money and counsel fees in divorce cases, see notes in 3 Ann. Cas. 51; 51 Ann. Cas. 229. See, also, 1R.C.L. 229. See 1 R.C.L. 912. *69
The plaintiff appeals from the decree denying her a divorce and dismissing her complaint. The defendant appeals from that part of the decree requiring him to pay $300 additional attorney's fee for the benefit of the plaintiff. The decree from which the appeal is taken was entered December 31, 1923. The plaintiff began another suit for divorce from the defendant January 21, 1924. February 28, 1924, she gave notice of her appeal from the decree rendered December 21, 1923. On May 24, 1924, defendant filed his motion to dismiss this appeal because plaintiff was prosecuting the second suit for divorce. On March 26, 1926, a decree was entered in the second suit granting to plaintiff a divorce from the defendant. Therefore on August 2, 1926, defendant renewed his motion to dismiss the appeal now under consideration. That motion was denied with permission to present it at the argument on the merits. The case was argued on the merits in this court on March 25, 1927. Plaintiff having been granted a divorce subsequent to this appeal is not entitled to be heard on the appeal. This appeal has become a moot question. The object sought by the appeal is a divorce. That object has been attained. The controversy between plaintiff and defendant is at an end: State ex rel. v. Webster,
The motion to dismiss is allowed and plaintiff's appeal is dismissed. APPEAL DISMISSED.
BURNETT, C.J., and McBRIDE and RAND, JJ., concur.
Addendum
AFFIRMED. Defendant does not challenge the validity of the order based on plaintiff's motion filed on March 15, 1923, allowing $100 on account of attorney's fee in which the court retained jurisdiction to make other and further allowance on account of plaintiff's attorney's fee and suit money at the trial of this case. Defendant questions the authority of the court to make the allowance of $300 additional attorney's fee, claiming that it had exhausted its jurisdiction by making the order based on the motion filed March 15, 1923. The allowance of attorney's fee and suit money in divorce cases is purely statutory. Unless the statute authorizes it so to do the court is without power to allow attorney's fee to the wife in a divorce suit. Our statute prescribes:
"After the commencement of a suit, and before a decree therein, the court or judge thereof, may, in its (or his) discretion, provide by order as follows:
"1. That the husband pay, or secure to be paid, to the clerk of the court, such an amount of money as may be necessary to enable the wife to prosecute *72 or defend the suit, as the case may be, and also such an amount of money as may be necessary to support and maintain the wife during the pendency of the suit; * *." Or. L., § 512.
This statute has been construed a number of times in this court. It has been uniformly held that an order for attorneys fee can be made only after the commencement of the suit and before the decree: Thomsen v. Thomsen,
The allowance of attorney's fee in a divorce case is in the sound discretion of the court: Or. L., § 512. We think the amount allowed plaintiff in this suit was not exorbitant, and the court did not abuse its discretion by making the order. That part of the decree appealed from by defendant is therefore affirmed. Neither party will recover costs from the other in this court.
AFFIRMED.
BURNETT, C.J., and McBRIDE and RAND, JJ., concur. *73
Addendum
Both parties have filed cost bills. In our opinion rendered June 7, 1927, we wrote: "Neither party will recover costs from the other in this court." We intended that to apply to the entire case and not simply to the cross-appeal of the defendant. We repeat that neither party to the case will recover costs in this court on either the appeal or cross-appeal.
REHEARING DENIED AND COSTS DISALLOWED.
BURNETT, C.J., and McBRIDE and RAND, JJ., concur. *74