161 N.E. 709 | Ind. Ct. App. | 1928
The action to which this proceeding is ancillary, was brought by appellant against appellee for divorce. A divorce with alimony was granted to appellee on her cross-complaint. Appellant appealed, and the judgment of the lower court has been affirmed by this court, Cirtin v. Cirtin (1927),
The question first presented for our consideration is as to whether the trial court, after rendering a decree of divorce and judgment for alimony in favor of appellee from which an appeal had been taken to the appellate court, had jurisdiction to make an allowance in favor of appellee to enable her to employ counsel and for the purpose of defending against such appeal.
As it seems to us, the weight of authority sustains the right of the trial court to make such allowances pending such appeal, and for the purpose of enabling the wife properly to present her defense thereto.
Appellant, contending that the court did not have jurisdiction, relies upon Westfall v. Wait (1903),
In 1 Ency. Pl. Pr. p. 449, the learned author states the rule to be that, "Temporary alimony and counsel fees may be granted by the appellate court pending an appeal, but the usual practice is that this shall be done by the trial court, which is deemed still to have sufficient jurisdiction for this purpose as long as the action is pending, i.e., while the appeal is undetermined."
We are not called upon in this case to determine whether such an allowance might be made by this court, for the question is not before us, but see Eward v. Eward (1919),
Authorities from other states with statutes as to orders relative to expense money for the use of the wife in making preparation of her case, similar in effect to the Indiana statute, are McBride v. McBride (1890),
In the McBride case cited above, the court said:
"In this case, although a judgment, final for the purposes of an appeal, is entered, the action is still pending. The jurisdiction over the parties remains through the further steps regularly taken and the action is in no sense or respect ended. By the terms of Sec. 1769, of *461 the Code, the allowance may be made `from time to time, during the pendency' of the action, and is described as `necessary to enable the wife to carry on or defend the action.' That is one of the purposes to be subserved, and the need is quite as pressing and obvious after the judgment and pending the appeal as before. It could not have been contemplated that before the judgment the wife should be aided in maintaining her rights, but after judgment in her favor, should be left to starve during the pendency of her appeal, and should be disarmed by her very success from defending the judgment in her favor."
It seems that it is well settled from these authorities, and numerous others that might be cited, that the court had jurisdiction for the purpose of making such allowance as it 2. deemed necessary and proper to enable appellee to defend against the appeal from the judgment rendered in her favor. We so hold.
After judgment had been rendered in favor of appellee granting her a divorce and $1,500 alimony, the cause was appealed to this court as stated above.
After appellee's application for suit money, appellant filed his application for a change from the judge who had theretofore tried the issues involved and rendered judgment thereon 3-5. in favor of appellee. But the cause had then been transferred on appeal to the appellate court and there was then nothing pending before the trial court except the ancillary proceeding for suit money. The court did not err in overruling appellant's application for change of judge. The only error presented by appellant's motion for a new trial was the court's ruling on appellant's motion for a change of judge, and conceding, without deciding, that a motion for a new trial is proper in a proceeding such as here, and that the court erred in sustaining appellee's motion to strike out the motion for a new trial, which *462
is the equivalent of overruling such motion for a new trial,Long v. Ruch (1897),
Affirmed.