38 P.2d 659 | Nev. | 1934
1. When this matter came on for hearing, the respondent made a motion to strike from the files and to dismiss the application for expense money. The court heard both the application and the motion to strike. The appellant filed affidavits in support of her application, and respondent filed a counter affidavit. We have repeatedly held that it is bad practice to file a motion to strike a motion, or what amounts to a motion (Orleans M. Co. v. Le Champ D'Or F.G.M. Co.,
2. It is well settled in this state that an appeal to this court is perfected by giving a notice of appeal and by filing in apt time the undertaking on appeal. Peran v. Monroe,
3. The appeal having been perfected, this court has jurisdiction to enter certain orders. We so held in American Sodium Co. v. Shelley,
If we were to accept the views contended for by respondent, it would be a repudiation of rule III of this court, which expressly recognizes that the court has jurisdiction to make orders in cases appealed to the court where no transcript has been filed.
But it is said that petitioner considered this an original proceeding, as is manifested by the fact that her application is entitled just as it was in the trial court. We attach no significance to this fact. Notwithstanding the provision in section 8883 N.C.L., to the effect that the party appealing shall be known as appellant and the adverse party as respondent, at least *441 95 percent of the cases docketed in this court on appeal ignore the provision alluded to. We do not think a party appealing should be penalized in the manner sought for failure to comply with the statute, particularly in view of the fact that it has been honored more in the breach than in its observance.
4. There is no merit in the contention that this court has no jurisdiction to consider the application and to make an appropriate order.
5. The question remaining to be disposed of is the amount to be allowed appellant as suit money. An affidavit has been filed by her, in which she states that she is "absolutely destitute and without any funds whatsoever" with which to prosecute her appeal, and that she has no means of obtaining funds; that she is ill and unable to work; that she is entirely dependent upon her father for the necessities of life, and that for some time he has been unable to provide for her support without seriously impairing his finances, and is unwilling to continue such support of affiant indefinitely; that he is of limited means and unable to provide any part of the funds necessary to the prosecution of this appeal; that respondent is a man of ability and is capable of earning sufficient money to pay all the costs incident to this appeal; that he has means within his control with which to obtain sufficient money to defray the expenses of this appeal, aside from his earning power, and that he has always had ample credit to obtain funds at will, not only from his mother and father, who are wealthy, but from other sources as well.
An affidavit by the father of appellant states that neither appellant nor affiant is financially able to pay for any services or disbursements incident to said appeal; that appellant has, since August 31, 1933, been absolutely dependent upon affiant for her support, maintenance, clothes, and necessities of life; that she has been unable to seek employment or derive any funds from such source. He further states that, though prior to 1929 he was in comfortable circumstances financially, he has been seriously affected by the depression and is *442 unable to contribute anything to the cost of this appeal.
An affidavit by Ruth Branch, of Norwich, Conn., has been filed, wherein she states that she is the next door neighbor of appellant, and that they frequently exchange visits; that appellant has been unable to seek employment since the desertion of appellant by respondent in 1933; that from her contact and conversations with appellant and her parents it is her firm belief that such parents are unable to do more for appellant than to furnish her with necessary food for her sustenance and support, and that it is affiant's best belief that appellant has no other relative or close friend from whom she could obtain financial aid.
Respondent has filed a counter affidavit, the substance of which is that he is utterly without funds and has no employment; that he is indebted to his father in the sum of $9,267, which is secured by a mortgage upon his home, which is now occupied by appellant; that his mother is giving him an allowance of a sufficient sum to take care of his actual living expenses; that he has no property or securities which he can hypothecate to borrow money, and that he has no way of raising money at the present time.
It is impossible for us to say that the facts are not substantially correct as stated by the respective parties. However, respondent has been able to provide quite an array of counsel in this matter. The wife has a right to have the proceedings in the lower court reviewed by this court. We held in Wallman v. Wallman,
In Herrick v. Herrick,
5. It is our conclusion that the respective amounts sought in behalf of appellant should be paid by respondent, and that all necessary orders should be made in the trial court extending the time for preparing, filing, and serving proposed bill of exceptions, effectuating the spirit of the law, and to that end to render the decree and order appealed from ineffective until the order for allowances for suit money is complied with, and ample time thereafter is allowed in which such appeal may be perfected. This court has no authority to extend the time for preparing, serving, and tendering a proposed bill of exceptions, and sees no occasion for making an order at this time extending the time of filing a transcript of the record in this court, since rule II provides that the transcript may be filed within thirty days after the bill of exceptions is settled.
It is ordered that respondent pay to the clerk of this court, for the use and benefit of appellant in the prosecution of her appeal, the several amounts sought in her application. Appellant will be allowed to apply in the future for any further order which may be necessary to accomplish the ends contemplated by law and in harmony with the views expressed. *444