Hall v. Hall

77 Miss. 741 | Miss. | 1900

OalhooN, J.,

delivered the opinion of the court.

Complainant below, W. R. Hall, the appellant here, filed his bill for divorce against Mrs. Hall, the appellee^ on the ground of desertion. She answered, denying the allegation of his bill, and made her answer a cross bill praying for alimony and allowance to her for counsel fees in the litigation. Testimony was taken, after which the court below allowed her alimony to the amount of $15 per month and also counsel fees, up to that stage of the litigation, of $75, and then, on her application, continued the cause. From this interlocutory decree Mr. Hall appealed.

In tins court Mrs. Flail petitions the allowance of counsel fees for her defense here, supported by affidavits showing her inability to employ solicitors and his ability to do so, and as to what is the proper amount, and Mr. Hall files his motion to strike her motion and affidavit from the files.

This motion of Mr. Hall to. strike appellee’s motion from the files we disregard as not in accord with proper practice. If this practice could be recognized, Mrs. Hall might move to strike his out, and he hers, and so on ad eternitaiem.

We therefore come at once to the consideration of her motion for attorney’s fee, and the sole question is whether or not this court, as an appellate tribunal, has the jurisdiction to make such allowance.

There is some conflict of authority as to the power of re-visory courts, appellate and supreme, to make such orders. But the weight in reason and numbers is in favor of the power. 2 Nelson on Div. and Sep., sec. 863, and cases cited.

We adopt the reasoning that tlie power is incidental to, and inherent in, a court with jurisdiction to review cases for divorce. The wife should have counsel, and it is of the first importance that she should have them to aid the court in reaching a correct conclusion. The husband has an immense advam tage if the wife be without counsel. The power must lodge in (his court as a necessity to the intelligent exercise of its revisory jurisdiction. We adopt the reasoning in the cases of Prine v. Prine, 36 Fla., 676, and Lake v. Lake, 17 Nev., 230.

Firs. ITall’s motion is sustained, but not to the amount she asks. We award her fifty dollars suit money for this court, to be paid to her or her order, or placed with the clerk of this court subject to her order, within thirty days from the date of this decree, in default of which payment, Mr. Hall’s appeal shall stand dismissed.