Lane v. Lane, 26 App. D.C. 235

Lane v. Lane

26 App. D.C. 235 | D.C. Cir. | 1905

Mr. Chief Justice Shepard

delivered tbe opinion of the Court:

Pending tbe appeal in this case, tbe appellee, Emma E. Lane,, moves for an order making an allowance of a sum reasonably sufficient to pay ber attorneys’ fees and expenses therein, to be paid by tbe appellant, John Henry Lane.

The facts presented differentiate this motion from others for tbe same purpose that have heretofore been denied.

It appears that on December 2, 1904, tbe appellee filed a bill against tbe appellant in tbe supreme court of tbe District, praying a legal separation. On January 21, she filed an application therein, supported by affidavits, for an order granting ber alimony pendente lite and counsel fees. January 31 an order was passed allowing ber $25 per month as alimony. Tbe appellant paid tbe same for three months and then made default.

On August 5, appellee filed a petition, alleging the nonpayment of tbe said allowance for three months, and asking a rule on tbe appellant to show cause why be should not be .adjudged in contempt for disobedience of tbe said order. Appellant, appearing, was adjudged to be in contempt, and ordered into the custody of the marshal until be should pay said arrears of alimony, amounting to $15. Erom that order this appeal has been prosecuted.

After tbe transcript bad been filed in this court, tbe appellee moved in tbe court below for an order to compel tbe payment of a sum of money to enable ber to pay counsel fees on ber appeal. *237This motion was denied for the want of jurisdiction. The motion now made is supported by affidavit showing that the .appellee is in destitute circumstances, and that the appellant is in receipt of a salary of $100 per month as a government ■clerk. The appellant admits the receipt of said salary, but says that is “is barely sufficient to meet the interest upon his debts and furnish him a decent support.” He further alleges that he ■owns a lot in the city of Washington, upon which he owes purchase money in the sum of $2,100. It does not appear what is the value of the same. He also alleges that he owes a small sum for taxes, $100 on a life insurance loan, $46 secured by deed of trust on his furniture (value not stated), besides certain other debts amounting to about $370. He also denies that appellee is in destitute circumstances, but alleges that she is maintained in ■comfort through her services as housekeeper for another person.

We have, in former cases, intimated that this court has the power to entertain a motion of this kind, pending an appeal in & divorce proceeding, though it was not then necessary to actually decide the question. Morgan v. Morgan, 25 App. D. C. 389; Bernsdorff v. Bernsdorff, ante, 228. Now that its determination is necessary, we have no doubt that the power to make such an order is incident to the appellate jurisdiction vested in this court. Prine v. Prine, 36 Fla. 676, 684, 34 L. R. A. 87, 18 So. 781; Clarkson v. Clarkson, 20 Mo. App. 94; Chaffee v. Chaffee, 14 Mich. 463; Disborough v. Disborough, 51 N. J. Eq. 306, 28 Atl. 3; Vanduzer v. Vanduzer, 70 Iowa, 614, 621, 31 N. W. 956; Lake v. Lake, 17 Nev. 230, 238, 30 Pac. 878; Krause v. Krause, 23 Wis. 354, 356; Wagner v. Wagner, 36 Minn. 239, 243, 30 N. W. 766.

This power is one, however, that will not be exercised unless "the application for the order is supported by proofs tending to «how that the applicant is in a destitute or needy condition, and that there exists a good reason why the relief could not be obtained in the trial court. Those reasons existing in the present ■case, the motion will be granted, and an order will be entered directing the appellant, within ten days, to pay to the clerk of *238tbis court, for delivery to the appellee, the sum of $25, to enable her to be represented by counsel on the hearing, and that in. case of his default his appeal shall be dismissed with costs.

It is so ordered.