26 Mont. 533 | Mont. | 1902
delivered the opinion of tbe court.
Judgment of divorce was entered in favor of the plaintiff for an offense committed by the defendant. From the judgment and an order refusing her motion, for a new trial the defendant has appealed. She now applies toi this court for an order requiring the respondent to pay to her the stun of $5,000 as a reasonable fee for the services of her counsel rendered and to be rendered on the appeals, and to pay also- the costs of the transcript, of her appearance fee in this court, and of printing her brief for this court; and also requiring the respondent to pay for her support and maintenance pending the appeals a sum in excess of the amount allowed by the district court. The power of this court to grant the order prayed for is challenged by the respondent.
By virtue of Section 11 of Article VIII of the Constitution of Montana, district courts have original jurisdiction of actions for divorce. While such an action is pending, the district court or its judge may, as is provided in Section 191 of the Civil Code, in its or his discretion require the husband to-pa,y alimony and suit money; and the “action is deemed to be pending from the time of its commencement until its final determination upon, appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied.” (Section 1895, Code of Civil Procedure.)
Whether tire district court or judge has power, pending appeal, to require the husband to p-ay to the wife money necessary to prosecute or defend against an appeal in a divorce case is a question reserved as unnecessary to be decided. As to the
Nor is the order prayed for one falling within the general and inherent powers of this court. Many decisions are produced which are asserted by counsel to uphold the position of the appellant. Some of the cases are directly in point, and fully support the contention. Of these, Lake v. Lake, 16 Nevada Reports, 363, and Id., 17 Nevada Reports, 230 (30 Pac. 878), is the strongest. Other cases, owing to the difference between the law of and the practice prevailing in the states where they were decided and the law and practice in this state, are of no value. Neither the courts which administered justice according to the course and practice of the common law, nor courts of chancery, were clothed with jurisdiction of divorce causes-. In the ecclesiastical courts, and in them only, resided the power to declare judicial dissolution of the bonds of matrimony. In
The application is dismissed for want of jurisdiction to entertain it.
Dismissed.