Franklin v. Franklin

68 So. 74 | Miss. | 1915

Peed, J.,

delivered the opinion of the court.

This case is now before us for hearing on the petition of appellee for an allowance of alimony pending this appeal, and for- counsel fees in this court. Appellee filed her bill in chancery seeking a divorce from appellant and a decree of the court setting aside to her certain property of the estate acquired and accumulated by appellant and appellee during their married life. She also prayed for alimony. Appellant filed an answer which he made cross-bill, and he also prayed for divorce. The chancellor upon motion allowed appellee alimony pendente lite in the sum of five dollars per month and solicitors’ fee, twenty-five dollars. Upon final hearing the chancellor granted a divorce to both parties and decreed appellee as alimony a house and lot occupied by the parties as a home and certain personal property. Appellant was taxed with the costs of the suit. From the final decree, he appealed to this court.

It is generally held that appellate courts have jurisdiction to order an allowance of alimony pending an appeal and counsel fees for the wife’s defense. This is done to enable the wife to maintain her rights on the appeal and is an incidental power in the court where the cause is pending. 1 R. C. L., sec. 21, p. 882; Lane v. Lane, 26 App. D. C. 235, 6 Ann. Cas. 683; Mosher v. Mosher, 16 N. D. 269, 113 N. W. 99, 12 L. R. A. (N S.) 820, 125 Am. St. Rep. 654; Hall v. Hall, 77 Miss. 741, 27 So. 636; Duxstad v. Duxstad, 16 Wyo. 396, 94 Pac. 463, 15 Ann. Cas. 228.

The petition is granted, and appellee is allowed alimony pending the appeal in the sum of five dollars a .month and also twenty-five dollars counsel fee.

Affirmed.