Suit for a divorce, by the husband against the wife. On appearing, the wife asked for an allowance to enable her to defend the suit. The Court refused the allowance. Subsequently, before the final hearing, the plaintiff dismissed his suit, and there was judgment against him for costs.
The defendant then renewed her application for an allowance, and the Court ordered the plaintiff to pay her 100 dollars. The plaintiff excepted and appealed from the order.
The Court assumed to act, in making the order, under § 17, 2 R. S. pp. 236, 237. We do not think the section authorized the act of the Court. It only authorizes such an order where there is a decree rendered for or against a divorce on the final hearing.
Section 569, 2 R. S. p. 161, provides that, on the affirmance of the judgment in certain cases, on appeal in the Supreme Court, the Court shall assess damages, &c.; but it has always been held that the Court would not assess damages in the specified cases where the appeal in them was dismissed before the Court rendered a decision, though such dismissal operated, of course, to affirm the judgment, and the party had secured the benefit of delay by his appeal.
Per Curiam. — The judgment allowing 100 dollars, is reversed with costs. Cause remanded, &c.