67 W. Va. 119 | W. Va. | 1910
Lead Opinion
In the circuit court of Ohio county, Emma V. Maxwell sought. a decree of divorce from her husband, A. 0. Maxwell. Bpon a hearing of the cause, the relief asked by her was denied and the suit dismissed. She obtained and perfected an appeal from the decree of dismissal. Thereafter she "petitioned the circuit court for an order compelling the husband to pay her .an amount of money sufficient to enable her to prosecute that appeal and
The question presented is that of the jurisdiction of the circuit court to award, because of the pendency of an appeal, suit money and maintenance after the appeal has been taken. Concurrently there arises the question of the power, of this Court to' make such an award in a case here on appeal.
Has the circuit court such power as it exercised? Does the power lie in the appellate court ? It is insisted that the circuit court can make no order for suit money and maintenance after an appeal of .the suit is perfected; that the oi;der can then be made only by the Supreme Court of Appeals, wherein the appeal is pending. These questions are of first instance with ns. Yet they are of vital importance. It behooves us to start right. In other states we find decisions in point. But they •are at great variance — many holding one way and many the other. Some are poorly considered; others seemingly controlled by constitutions and statutes different from ours. Perhaps we could truthfully say that the greater number of them justify the conclusion that we shall announce in this opinion. The decisions of New York, Maryland, and California, and the latest decisions in Missouri, are dearly in accord with it. So are many others. But no opinion should be controlled by the number of precedents found in other jurisdictions. Nor should those precedents be persuasive unless founded upon sound reason. We shall give them only such weight as their good sense discloses.
A late exposition of the decisions on the subject under consideration is that in the helpful note in 3 Amer. & Eng. Ann.
The Supreme Court of Appeals has original jurisdiction only
Will it be insisted that this Court can entertain an original issue upon the question of an award of suit money and maintenance, hear evidence, and originally decide thereon? If the application can be made here originally, we must entertain a resistance thereto, hear evidence, and decide an entirely new case — a case created and made up wholly in this Court. Again we say, no such power is vested here except in cases of habeas corpus, mandamus, and prohibition. Yet we must open the door of this Court for original evidence, if we open it for original application. But this Court cannot hear evidence other than that brought up for review, except in the. exercise of original jurisdiction. That is the command of the law-makers. “The Supreme Court of Appeals shall not hear parol testimony except in cases in which it has original jurisdiction.” Code 1906, chapter 135, section 25. That mandate means that, as to cases here on appeal, we shall deal only with evidence taken below and brought up for the purpose of a review of an order or decree made upon it below. It means that in using our appellate powers we shall consider no other evidence, and shall consider it for no other purpose. Now can we properly determine the right to suit money and maintenance, based on the pendancy of an appeal, ■and the amount to be allowed, other than by original evidence? Shall we look to the evidence brought up for review ? Even if the evidence brought up by the appeal happens.to be pertinent to such new subject, we cannot decide upon it a proposition that has not been decided below without exercising original jurisdiction. We can consider evidence brought here on appeal only in reviewing orders or decrees made upon it below. We cannot look to it for the purpose of exercising an original jurisdiction that is not vested in this Court.
We are not unmindful that the use by an appellate court of such power as is in question has been upheld in a Nevada decision, upon the ground that the power is necessary to enable the appellate court to exercise its appellate jurisdiction, or at least is an aid to the review of the case on appeal. Lake v. Lake, 17 Nev. 230. In other words, appellate jurisdiction includes the power to hear original issues and make original orders for the
If, after an appeal of a divorce case, the wife seeks to be paid suit money or maintenance pending the appeal, she must apply therefor in the circuit court. Since the matter is of original and not appellate cognizance, it must be litigated where there is original jurisdiction for it, and where original evidence may be heard upon it. It is no part of the appeal. It is indeed 'a new case. Though the procedure is collateral to a case on appeal, yet it involves a matter that is independent of any question raised by the appeal. It embraces a showing that was not made in the court below, and which therefore could not be embraced in the appeal. That showing could not be made until the appeal was taken, for the showing itself is that of the pend-ency of the appeal and the necessity for suit money and maintenance which that appeal has caused. The making of this showing in the circuit court is not prevented by the appeal. That appeal affects only that which has been done by the circuit
Our statute on divorce procedure vests jurisdiction in the circuit court to make orders for suit money and maintenance. Code 1906, chapter 64, section 9. • This power by our law lies in no other court. The language of the statute is: “The court in term, or the judge in vacation, may at any time pending the suit, malee any order that may be proper to compel the man to pay any sum necessary for the maintenance of the woman, and to enable her to carry on the suit.” That statute plainly relates to the circuit court. It puts the power there.- It could not put it in this Court; the Constitution forbids. And it puts the jurisdiction in the circuit court to be employed “at any time pending the suit.” The power may be exercised during the original pendency of the suit, or during its subsequent pendency on appeal if the circuit court then acts, on matters that are independent of those it has already acted upon and from which
An expression in Beard v. Arbuckle, supra, is directly pertinent to the case before us. While it relates to the power of the circuit court to appoint a receiver in a cause which is pending on appeal, and justifies such power, yet the same is analogous to the matter at hand. The remarks are quite as applicable in asserting the power of the circuit court to award suit money and maintenance pending appeal, and in denying the jurisdiction of this Court in the premises. Judge Joi-INSON says: “The court' was asked to do something in the cause not involved in any of the decrees theretofore rendered. It was entirely independent of them), or any of them. Entirely new evidence might have been heard upon the petition, which could not be heard in this ' Court, therefore it would not be proper for this Court, pending the appeal and supersedeas, to appoint a receiver.; and if such appointment could not be made by the circuit court there might be a denial of justice.”
The power to award suit money or maintenance pending the appeal of a divorce suit is sojely in the circuit court. The .making of such an award is the exercise of an original jurisdiction which is not vested in the appellate court. The decree will, therefore, be affirmed. ,
Affirmed.
Dissenting Opinion
dissenting
We must say that whether alimony pending suit or allowance to the wife to carry on her suit shall be made is not matter of absolute right, but comes under the sound discretion of the Court, and is a question for the Court to be decided upon the facts. Goff v. Goff, 54 W. Va. 364. It is a question savoring of the merits, and is litigable between the parties, and is to be judged of in almost all cases by the record of the appeal, though affidavits may be read upon the question. It is so much litigable that the order of the court is appealable.’ This being so, how can a circuit court, after final decree and perfected appeal, decree alimony temporary or suit money, seeing that after appeal the lower court is bereft of jurisdiction over the subject and the parties, except to preserve the res in litigation to abide the decision of the appeal? The parties and the cause and rights involved in it are in the appellate court, and yet the lower court is to say whether such money is to be given, and fix the amount of expenses even in the appellate court. Authorities in Crawford v. Fickey, 41 W. Va. p. 546. “Pending appeal from a 'decree to which a supersedeas has been issued, and perfected by bond, the only orders the court below can make are such as are needed to preserve the rem in litigation”. Cralle v. Cralle, 81 Va. 773. That case is just like our case. After appeal perfected the lower court decreed "the wife money to defend the appeal and a monthly sum for support during its pendency, and the supreme court held such decree unauthorized. Nelson on Divorce, section 863, after suggesting some arguments in favor of the continued power of the lower court to make such decree, says: “On the contrary, the whole power should not be delegated to the lower court, for during the pend-ency of the appeal the appellate court may find it necessary to change the amount of alimony and. suit money and to make further orders concerning the same. Where the practice is not controlled by statute, the ordinary rules of practice, as well as .plain principles of law, would suggest that the jurisdiction of the lower court is lost when the appeal is perfected. Before the appeal is perfected the lower court has the power to award alimony and any sum of money necessary to enable the wife to prepare the case for appeal, including clerks’ and reporters’