65 Wis. 412 | Wis. | 1886
This is an application for suit money and temporary alimony for the support of the appellant and her child pending an appeal in this court. The appeal is from an order of the circuit court which vacates and sets aside an order of a court commissioner granting alimony and suit money pendente lite. The application in this court is made upon the record constituting the return in the appeal cause, and upon affidavits annexed to the motion.
It is not the practice of this court to grant such allowances as a- matter of course. The rule upon which the court acts is well stated by Chief Justice Dixon in Krause v. Krause, 23 Wis. 354, substantially, as follows: The granting of temporary alimony and suit money, to enable a wife to prosecute her appeal, is not a matter of course in this court; and when application is made wre think we must look into the record so far as to determine whether the appeal is obviously without merits; and if it is then the motion will be denied. Injury and'a meritorious cause of action must appear. This rule was recognized, and in effect acted upon, in Phillips v. Phillips, 27 Wis. 252; Weishaupt v. Weishaupt, 27 Wis. 625; Freeman v. Freeman, 31 Wis. 235; and Varney v. Varney, 54 Wis. 422.
It becomes our duty, then, in deciding this motion, to examine the record on the appeal, and to ascertain whether a meritorious cause of action exists. It is true, this is the question which is necessarily involved in the appeal itself; but it would be manifestly improper to grant any allowance if, on looking into the return, no good cause of action is stated. It appears from the-record that the appellant now asks for a divorce from the bond of matrimony on the ground that her husband, being of sufficient ability, refuses or neglects to provide for her support and the support of their child. It further appears that she voluntarily abandoned him in the summer of 1883, and refuses to live with him. In March, 1884, she commenced a suit for divorce,
Now, it does not appear from the second complaint that the appellant has ever offered to return to her husband’s home and discharge her duties as a wife. We infer she takes the ground that he is under obligation to support her while she persists in living apart from him. It seems to us she sadly misconceives her duty and his obligation. When she returns to his home, or offers to return and discharge her conjugal duties, she will be in a position to invoke the law to compel him to perform his duties if he refuses to do so. In Varney v. Varney, 58 Wis. 19, after the first action for divorce was ended, the wife offered to return to her husband’s home. The husband refused to permit her to do so. Hence the language of Mr. Justice Cassoday that her failure to prove want of support prior to the first action did not
It follows from these views that the ¿notion for suit money and temporary alimony pending the appeal in this court must be denied.
By the Oourt.— Motion denied.
The appeal was dismissed, by stipulation, March 16, 1886.