*1 possession regardless actual in the interest, was then of who * * crops, *. of the may be possession the lease title reserved “The possession title and a kind of theoretical said to be purpose en- protection landloard, but not rights rights tenant, or abling of the him to violate the tenant.” of creditors attempted tenant and the
In this case the owner upon deprive agreement corn of 100 bushels the bank upon mortgage which a valid lien its which rights of a “The under the lease. had no claim owner dissipated mortgagee acts thin air into cannot thus v. Bank of Wheaton National landlord or tenant.” supra. Elkins, judgment notwithstanding therefore the verdict is the circuit with is remanded to
reversed case judgment for the ver- defendants directions enter jury. dict JJ., LEEDOM, and part concur.
ROBERTS and SMITH RUDOLPH, J., took no in the decision. Respondent, Appellant
KUEHN, KUEHN,
(55 70) N. W.2d 1952) (File Opinion No. 9298. filed October *3 Falls, for Sioux Evans, Smith, & Davenport, Hnrwitz Respondent. Plaintiff and Appellant. Falls, for Defendant and Sioux Johnson, T. R. Judge. HANSON, The trial court Circuit That wife, offense of the defendant. a for an divorce trial and the defendant at the was not contested issue no questions appeal appeal therefrom. Defendant’s is taken alimony provisions property division and or not the whether equitable in not the trial court erred and whether or are findings relative thereto. fact parties October, were married in to this action good educated, health, and time both were well in
At the backgrounds enjoyed comparable as social and economic marriage prominent families. The was without members of n issue. marriage employed Following'the the defendant was family. companies owned members of his in wholesale This tion July, liquida- employment 1946, terminated salary companies. The defendant’s from 1934 of such per During $250 varied from month. marriage apparently happy period a and con- was time genial one. plaintiff became afflicted with This 1938the In diabetes. regimented exercise, rest, schedule of for her a
necessitated diet, tests and medication. The referred doctors fragile, unpredictable condition as or severe. The required tests, was able to administer insu- take the properly lin, and control her diet so that such affliction was marriage. disrupting plain- in no manner a force to the aggravated condition, however, tiff’s was nervous strain worry and the trial court found that such condition prevent any pursuing gainful employment. would her from parties purchased In 1941the a home in Sioux Falls for joint tenancy. $8,250. Title to the same was The trial parties purchase court found that both to the contributed present $20,000 of their home and that its value was $3,500. furniture contents were value of exception soap With the of a small not venture busi- gainfully July, employed ness the defendant from April, April, purchas- 1949. In the defendant Century Company Equipment Supply ed the of Sioux operates. Falls, he still which owns and The income from largely nominal, that business has been due to the defend- intemperate intoxicating liquors. ant’s trial court years past found that guilty at least five defendant has been intemperance intoxicating of habitual use of liquors tending disqualifying properly to the extent of him from at- business, and that the same was sole cause of this *4 purpose
It would no useful to serve here detail separately assigned or consider all the facts all of the errors by findings respecting the made the trial court. Character istically entirely the in this case evidence was not harmon judge required the trial ious and resolve to the result regard repeatedly ant In the court conflicts. has stated: judge parties of the trial had before him “The court the and testify opportunity heard and he the witnesses had better weight given than this court to determine the to to the evidence, there evidence submitted. Where is a conflict of preponderance against and is no clear of there evidence the findings findings by court, the its of trial will not be disturbed Habeck, Habeck 51 D. this court”. N.W. carefully We have reviewed the entire record in finding each which shows that trial this case court founded, upon no clear There is substantial evidence. is findings, against preponderance there- those of the evidence respecting fore, the error same. there is no plaintiff sums From to 1948 received varies the During by way property of of and inheritances. family purposes, period $16,000for this reduction of she over contributed mortgage purchase home, of se on and the the partially compensate such To the for con curities. July 1950, defendant, certain the transferred tributions property of stock and interests to the hav shares ing agreed approximately $13,000. The valuation of including found assets transferred court that the by including defendant, the and half interest in the home contents, had and its at the time of trial assets totalling exception approximately $52,000. of That with the automobile, home, Buick the half interest by defendant, securities transferred her by through acquired were and her services assets inheritance by performed, family. of her members court further found that the defendant had total amount assets ing including $63,559.66, a half interest in the home and Century Equipment Supply Company, furniture, the in & policies, Practically bonds and all surance securities. acquired during marriage defendant’s assets were of parties joint their efforts. These are assets sub only ject $5,000 to a of debt due In defendant’s father. addi residuary tion to those assets the defendant is one of two- Rogers beneficaries of the Nellie Carter estate. resid uary portion $50,000 estate was valuded at in 1928. subject However, it is to the defendant’s mother who years age. now 68 property simply division made the trial parties respective allowed the assets, to retain their subject adjustments, following plain- viz.: The ownership tiff was the sole of the house its con- required pay plaintiff tents; the' defendant was the sum of $3,000 as further reimbursement the cash contributions during marriage; *5 made her and the defendant was given title to the Buick automobile.
526 prospective plaintiff’s in-
The court further found that annually $1,987.40 come from investments amount to will according life, and to her station in maintain her living during marriage, requires standard of not less per equalize than month. In order to the difference prospective between need and income the defend- pay plaintiff per ant was ordered to the sum of $135 alimony payment month. To insure the of such the defend- (cid:127) required deposit policies, in ant was certain insurance pay premiums $10,000, amount of in trust and .the face enjoined defendant was further manner from transfer- thereon. The ring any hypothecating stock, or in certain bank un- permitted the court to do so. less When a divorce is for an offense of the discretionary authority, trial husband the court has under 14.0726,to make both a suitable allowance the wife SDC support equitable for her property and to make an division of the
belonging
parties.
either or
both
This
numerous decisions has construed the above
court in
statute
may properly
has enumerated the salient factors that
making
equitable
into
division
be taken
consideration
and a suitable allowance to the wife under the
Tuttle,
545,
695;
26 D.
128
same. Tuttle v.
S.
N.W.
Caldwell
568;
Caldwell,
472,
v.
58 D.
237 N.W.
Peterson
Peter
v.
399,
804;
Bohl,
257,
son,
D.
228 N.W.
Bohl v.
D.
56 S.
72 S.
690;
Alwin,
296;
Alwin v.
49
32 N.W.2d
Peterson
S.D.
N.W.2d
Peterson,
The defendant contends that he can not alimony encroaching upon allowed without premised present This is estate. on his assets his fail intemperate income, induced ure to earn a substantial his *6 edu- in the defendant’s court found that view of habits. The experience reasonably $6,- earn the sum cation he and can annually refrains from the excessive 000 or more if he liquor. former he now netted the The business that owns fully The owner a substantial income. record sustains alimony ability pay to for and the defendant’s need inability to the same. is a vast difference between There unwillingness pay alimony and a or do so. disinclination to case, in if the Under all facts and circumstances this corpus be resorted in order afford of either estate must fairly support equitably then it and fol- solely defendant, lows that it should be of the who that responsible
The trial court made an allowance to expenses appli for counsel fees in its final decree. No pendente by plaintiff. cation lite therefor was made Such application important an is an factor to be in de considered termining necessity award, of such an but it is not a precedent condition to the allowance of the same under SDC expenses may properly 14.0725. Counsel fees and be includ ed erty prop in the final decree as an incident to the divorce and necessary
settlement cases where the same is found prosecute to enable wife or defend the action. Such allowance rests the sound discretion the court and in existing view of all the facts and circumstances in this case we find no abuse of discretion. Immediately appealed after defendant filed application attorney’s in this court for an allowance of expenses. ruling application
fees and on such was re- served.
It has been determined that court vested has juris power, appellate in it the inherent incidental to its grant cases, diction of review and modification divorce alimony temporary appeal. suit on Wells authority gov Wells, 26 D. 636. This not 127 N.W. is wholly provision 14.0725, that erned as relates SDC supra. Wells, Wells v. trial court. wife in this case is entitled to a reasonable attorney’s resisting expenses fees allowance appeal husband. decision of the trial has. respects to such al- been affirmed in and she entitled all integrity preserve order lowance in to' judgment is, therefore, our settlement. It that attorney’s *7 allowed the sum of fees. judgment
Finding appealed is affirm- from no error the ed. LEEDOM, JJ,
SICKEL, con- J.,P. RUDOLPH and cur.
SMITH, J., dissents. Judge, sitting ROBERTS, J., HANSON, dis- Circuit qualified. foregoing- (dissenting part).
SMITH, Wherein J. attorney’s opinion suit deals with allowance dissent; I the views therein ex- fees, concur in I otherwise pressed. Appellant Respondent, NICHOLSON,
HJELLE, 607) (55 W.2d N. 1952) Opinion filed (File November No.