Breen v. Breen

159 Mich. 389 | Mich. | 1909

Montgomery, J.

This is an application for an allowance of alimony. It appears that the case has proceeded to a decree in the court below and a claim of appeal to this court has been filed with the register of the court, and a showing is now made for the purpose of securing an allowance for a transcript of the stenographer’s report of the testimony, for printing the brief, services of counsel, registry fee, etc.

. It is objected by the defendant that this court has no jurisdiction of the case for the purpose of allowing this motion. The statute authorizing appeal (Act No. 299, Pub. Acts 1909, § 2) provides:

“Any party desiring to appeal from the order or decree of the circuit court in chancery shall, within forty days after the entry of such order or decree, or, in cases where the cause is heard upon proofs and pleadings taken in open court, or before a circuit court commissioner, or by deposition, then within forty days after the settlement of the case upon such appeal, file or cause to be filed a claim of appeal in writing with the register of the court where such decree or order was entered, and shall also within the said forty days pay a fee of five dollars to the register in chancery.”

It is contended that until the case is settled it may not be appealed to this court.

Under a statute entirely similar (2 How. Stat. § 6647), it was held that, although the time for taking an appeal begins to run from the settlement of the case, the fact that the appeal was taken prior to the settlement of the case is not necessarily a ground for the dismissal of the appeal. Simons v. Simons, 47 Mich. 645 (10 N. W. 360). And in Van Voorhis v. Van Voorhis, 90 Mich. 276 (51 N. W. 281), we entertained jurisdiction to grant alimony in a case in which there had been no settlement of the testimony so far as the record discloses.

The showing before us is that the complainant is occupying a homestead owned by the parties; that she is receiving $18 a month rental for the lower story and living in the second story; that, in addition to this, the defendant is furnishing her an allowance of $35 a month, and the petitioner does not ask for any allowance for her own support. She does ask for $1,186, which consists of an estimated expense of $540 for the transcript of the record and for printing the same and printing the brief, $11 for clerk’s and register’s fees, and $635 for counsel’s services and expenses. In a case in which the complainant has had a hearing in the circuit and been denied relief, there is no such presumption that she is entitled to maintain a bill of this character as to justify an extravagant allowance of counsel’s fees for the preparation and submission of the case. The same counsel is engaged who was employed in the court below. Presumably he is familiar with the testimony, and it is not believed that at any reasonable per diem his services will amount to the sum stated for preparing and submitting this case.

We limit the allowance of counsel’s fees to $200, and, as to any further allowance for services, the parties must be content to await a determination at the hearing. In addition to this, there will be an allowance of $200 for the transcript to be paid within ten days, $300 for the printing of the record, or, in lieu thereof, the defendant is at liberty himself to secure the printing of the record, $40 for printing the brief, and $11 to cover the register’s fee and the fee of the clerk of this court, making a total allowance of $751.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.