Cameron v. Cameron, 139 N.W. 329

Cameron v. Cameron

139 N.W. 329 | S.D. | 1913

SMITH, J.

Appeal from circuit court of Davison county. On the 29th of September, 1898, Lesbia.G. Cameron began an action for divorce against .the defendant, Alexander Cameron, in Davison county. Defendant entered an appearance and filed an answer which was withdrawn on May 1, 1900, and on May 3, ■ 1900, a decree of absolute divorce was entered. The decree contained no provision relating to alimony. On June 5, 1911, a little-more than 11 years after the entry of this decree, Lesbia G. Cameron made application in the circuit court of Davison county for a modification of -the decree and' for an allowance of permanent alimony in the sum of $25,000 and attorney’s fees of $500. The proceeding was resisted ’by defendant, and the matter heard ■on the merits on the 29th day of June, 1911. On that date, the trial court entered an order denying the application and dismissing the proceeding on the merits. Thereafter, on July 1, 1911, the circuit court, without further notice or hearing, entered another order entitled in the same case, and containing, among other recitals, that the court on the 29th day of June had dismissed and denied plaintiff’s application for permanent alimony, and that counsel for plaintiff, Lesbia G. Cameron, had thereupon stated she desired in good faith to appeal to the Supreme Court from such adverse order, and that the court, “being now fully advised in the premises, orders that the defendant pay to plaintiff or her attorney the sum of $200 for attorney’s fees and expenses within 30 days after notice of appeal from -the order made and filed on'the 29th of June,'1911, dismissing on the merits plaintiff’s application for permanent alimony.” From this order defendant appeals: First, because said order was not made upon proper application of the plaintiff and was without notice to defendant. Second', because the decision of the co-ur.t made on June 29, 1911, must be assumed to be correct, and defendant may not be compelled to pay the expenses of an appeal by plaintiff.

Appellant in his brief concedes that had plaintiff prevailed, and defendant appealed, an order allowing plaintiff attorney’s fees to enable her to defend the appeal in the appellate court would have been in furtherance of justice and might properly be al*638lowed, but contends that where defendant prevails he cannot properly be compelled to pay the expenses of an appeal by the plaintiff.

The question of the right of both the circuit and supreme courts to make'allowances for attorney’s fees on appeal in divorce cases has been finally put to rest in this state, by the decision of this court in Wells v. Wells, 26 S. D. 70, 127 N. W. 636. One of the authorities cited with approval in that decision is the case of Wagner v. Wagner, 36 Minn. 239, 30 N. W. 767. In that case the appellant, who was the losing party, made a motion in that court for an allowance to enable her to prosecute her appeal. The case is exactly in point, and is decisive of appellant’s contention. In that case the court said: “We have,no doubt of the power of the court upon a proper showing, in a suit for divorce, .to make ari order requiring the husband to pay to the wife such sums as may be necessary to enable her to prosecute or defend' an appeal in this court.” In Wells v. Wells, supra, this court said: “The trial court decided against this appellant, and certainly this court should see to it that respondent has an opportunity equal to the appellant to present her cause upon this appeal.”

[1] Either this court, or the trial court in a proper case, may as justly require the husband to pay the expenses of an appeal by the wife from an adverse decision, as it may require the husband to pay the expenses of defending an appeal where he is the appellant. We are therefore of opinion that as to this contention appellant is in error.

[2] Upon the other contention, we are forced to the conclusion that appellant is right. The original motion for a modification of the judgment and the .allowance of $25,000 alimony mi $500 counsel fees, which was decided on the 29th day of June, 1911, was not in any sense an application for suit money or counsel fees to enable her to prosecute an appeal from an adverse decision upon that motion. The demand for, counsel fees was dearly for the .purpose of enabling 'her to prosecute the motion for alimony and for that alone. The subsequent order allowing plaintiff $200 áttorney’s fees in the appeal from the original order appears to have been made, so far as-the record discloses, without any application on the part, of plaintiff by motion or otherwise, and without any notice to defendant.

*639We are of opinion therefore that the order of the trial court, if not wholly void, was erroneous, because made without proper application, and without notice to defendant, and should be reversed. The order is one, however, to which plaintiff was entitled upon proper application and notice, and the amount allowed for counsel fees is not claimed to be unjust or excessive. ■

We feel compelled to reverse the order of the trial court, but think equity demands that the reversal be without costs to appellant. It will be so ordered.