151 P. 44 | Nev. | 1915
Lead Opinion
By the Court,
Appellant brought suit against respondent in the district court of Washoe County for a divorce. To the complaint the respondent filed an answer and cross-complaint, and upon the trial a judgment and decree were entered in favor of respondent granting her a divorce. Judgment was also rendered in her favor for a monthly allowance as permanent alimony in the sum of $133.33, for $275 as attorney’s fee, and in the further sum of $198.75 as costs. Appellant has brought the case to this court by appeal.
The matter is now before the court upon the application of respondent for an order requiring the appellant to pay the several sums for which judgment was rendered by the trial court, which has been appealed from, and for an allowance as an attorney’s fee for her defense on the appeal. She also asks that the court fix a time within which said payments must be made, and that, in default of making such payments, the appeal be dismissed. The court is not asked to make an allowance to respondent as alimony pending this appeal.
In Lake v. Lake, 16 Nev. 303, this court said:
"No statutory provision authorizes an allowance for counsel fee's in this court. But such right has been exercised by courts of similar jurisdiction in conformity with the.decisions of the ecclesiastical courts of England. (Goldsmith v. Goldsmith, 6 Mich. 285; Phillips v. Phillips, 27 Wis. 252.) The exercise of such authority is based upon the presumption that jurisdiction in divorce cases carries with it by implication the incidental power to make such allowances. The power is indispensable to the proper exercise of jurisdiction in guarding the rights of wives."
The same question was before this court again in the case of Lake v. Lake, 17 Nev. 238, 30 Pac. 878, where the former ruling was adhered to.
There seems to be no doubt but that the practice in the ecclesiastical courts was to allow alimony on appeal, pending the final determination of the case. (Loveden v. Loveden, 1 Phillim. 208.)
" The authorities differ as to the power of an appellate court, to grant an order directing the payment of temporary alimony and suit money upon an appeal in a divorce action. In some jurisdictions such power is denied, but the weight pf authority is in 'favor of an exercise of the power.” (14 Cyc. 745.)
In the case of Holcomb v. Holcomb, 49 Wash. 498, 95 Pac. 1092, where all of the authorities taking both views are cited, it is held that the appellate court has power to make an order as to the suit money pending appeal. We see no reason for not adhering to the rule heretofore adopted by this court in the Lake case.
At the time of the oral argument, counsel for appellant made a motion to strike from the files the motion and notice of motion of respondent. We believe this practice tends to confusion, and, so far as we are advised, is not approved by any court, but condemned by many. (Wier v. Bradford, 1 Colo. 14; 28 Cyc. 15.)
It is the order of the court that appellant be, and he is hereby, directed to pay to the respondent or her attorney of record, as an attorney’s fee for her defense in this court, the sum of $250, within thirty days from the service of a copy hereof upon his attorney.
A further order as to attorney’s fees may be made by the court, should future developments justify it.
Since no application was made for alimony pending the appeal, nor for suit money, no order will be made as to them.
Concurrence Opinion
I concur in the order.
Respondent’s motion for an order granting alimony pendente lite came on regularly to be heard this day (October 26,1915) before the court. Respondent appeared by and through her attorney, A. E. Painter, Esq., and the appellant by and through his attorneys, Messrs. Summerfield & Richards. Said motion was heard, argued, submitted, and duly considered, and, the court being fully advised in the premises—
It Is Ordered, and the court does hereby order, that said motion be, and the same is hereby, granted, and accordingly that appellant pay to the respondent, either through the clerk of this court or through A. E. Painter, Esq., the attorney for respondent, the sum of two hundred dollars ($200) per month, pending the appeal in this case, beginning from the date of this order, and that the same be made on or before the 5th day of each and every month, commencing on the 5th day of November, 1915; and that if appellant fails to make said monthly payments as aforesaid, this court will entertain a motion to dismiss his appeal herein.
Order of Dismissal
Per Curiam:
It appearing to the court that heretofore, on the 26th day of October, 1915, an order was duly made and entered by this court requiring appellant to pay to respondent the sum of $200 per month alimony pendente lite on or before the fifth day of each and every month thereafter during the pendency of such appeal; and it appearing to this court that such order has not been complied with and no satisfactory excuse offered for such noncompliance; and it further appearing that on the 11th day of November, 1915, a notice of motion to dismiss the appeal for noncompliance with such order was filed in this court and served on counsel for appellant, which notice coming on to be heard upon the 15th day of November, 1915, was presented to the court by counsel for respondent, counsel for appellant failing to appear and resist said motion;
It Is Ordered, that said appeal be and the same is hereby dismissed.
Dated December 6, 1915.
Concurrence Opinion
I concur.