56 Ind. App. 98 | Ind. Ct. App. | 1914
This is a suit by appellant, plaintiff below, against appellee for divorce and alimony, on the ground of cruel treatment, habitual drunkenness and failure to provide. The complaint in two paragraphs was answered by general denial and by a plea of condonation. To the latter plea the appellant replied by alleging in substance that since the alleged condonation, the wrongful acts of appellee had been revived by their repetition. Upon trial of the issues the court found for appellant for divorce, $100 alimony, and awarded her the custody of their minor child.
On November 23, 1911, after1 the finding of the court was announced, and before judgment was rendered, the appellant filed her verified application for an allowance for expenses incurred by her for attorney’s fees, in which she showed the employment of her attorneys, the services rendered by them and that their fee was $75. On this petition she requested the court to allow her $50 additional expenses incurred for attorney’s fees. "With her application she filed the affidavit of John H. "Weathers, one of her attorneys, in which he set forth the work done in bringing the suit, making up the issues, and in the preparation and trial of the case; that after preparing for the trial, a day was spent in
On November 25, 1911, the court overruled the application for an allowance for attorney’s fees, to which appellant duly excepted. On the same day appellant filed her motion for a new trial on various grounds including the overruling of her motion for an additional allowance for expenses and alimony. The motion was overruled and the court thereupon rendered judgment in accordance with the finding previously announced. Thereupon the appellant moved the court to modify the judgment (1) by increasing the alimony to such a sum above $100 “as would be fair and just under the evidence of the case”, and (2) by inserting in the judgment an allowance and order against the defendant requiring him to pay the plaintiff the sum of $50 for her expenses, in employing attorneys in the suit. This motion was overruled.
Errors are assigned by which appellant presents for our decision two questions, viz., (1) that the alimony allowed to her is unfair and insufficient in amount under the facts of the case; (2) that the court erred in refusing to allow her reasonable expenses for attorney’s fees. No objection is made to the manner in which the questions are presented, except appellee insists that the questions cannot be considered without an examination of the evidence, and that appellant has failed to comply with the rules of the court in setting out a condensed recital of the evidence in narrative form in her briefs. The evidence has since been supplied and filed by permission of this court.
The question here presented is identical with that decided by the Supeme Court, and we find no way of distinguishing the case at bar from the cases decided by that court. While the rule seems to be somewhat at variance with the doctrine of the discretionary power of the trial court, the point is
Since the appellant appealed to secure a right given her by statute, it is therefore further ordered and adjudged that the appellee pay the costs of this appeal.
Note. — Reported in 104 N. E. 989. As to nature of decree for alimony, see 102 Am. St. 702. See, also, under (1) 14 Cyc. 769, 771; (2) 14 Cyc. 764, 765; (3) 3 Cyc. 424.