44 Ark. 46 | Ark. | 1884
This is an appeal in a divorce, suit, by the husband, from an order allowing the wife alimony for maintenance and counsel fees, pendente lite. The cause below is still pending. A supersedeas bond has been filed.
Counsel upon both sides have declined to aid us with briefs, and the pressure of business upon the court is too great to justify us in patient microscopic searches after error, through the whole transcript.
If it bethought that the deoree for alimony pendente lite is not final, and therefore not subject to appeal, are referred to the case of Hecht v. Hecht, 28 Ark,, 92, where the point is settled affirmatively on the soundest reasoning.
If appellant doubts the power of a Chancellor to award alimony to the wife, whether as plaintiff or defendant, out of the husband’s property, the same case may be taken as settling that also. It may be added that it is the universal and unquestioned practice of the English ecclesiastical courts to do so. (See Cooke v. Cooke, 2d Philimon, 40; Otway v. Otway, Ib., 109; Brisco v. Brisco, 2 Hag. C. R., 199; Stone v. Stone, 3 Curtis, 341.) It was not proper to do so, however, except upon what was called in ecclesiastical parlance an “allegation of faculties” made in her behalf,, and some showing of the husband’s ability. Butler v. Butler, 1 Lee, 38.
Under our practice, affidavits in support of a motion on the wife’s part, may take the place of “allegations of faculties” in showing the husband’s ability; and then the matter is in the sound discretion of the Chancellor.
In the absence of any proof of separate property in a wife, it is just and reasonable to compel the husband to-furnish the wife with means to defend a suit by him for a divorce. Otherwise she would be at his mercy. And for-the same reason he would be secure against the best founded suit for a divorce on her part, if she were bound-helpless to prosecute. He is compelled to furnish her with necessaries suitable to her station in society, and' to his means. Alimony, pend,ente lite, may be a greater necessity than anything else. It may be safe to say that no well-balanced man, regardful of public opinion, would desire to put himself in the position of prosecuting or defending a suit against a wife deprived, meanwhile, of counsel, and in danger of starving, whatever her guilt may be eventually proved to have been.
We find no abuse of discretion in the court.
Affirm.
