25 App. D.C. 389 | D.C. Cir. | 1905
delivered the opinion of the Court:
Whether this court, in the exercise of a sound discretion, has the power to order a husband, who is the appellee in a divorce proceeding, to pay to the appellant a sum of money reasonably sufficient to enable her to prosecute an appeal which has been perfected by filing a transcript, as required by the rules regulating appeals in general, is a question that is not involved in the consideration of the prayer of petitioner.
Assuming, without deciding, that the power may he exercised in such a case, we are of the opinion that we have no jurisdiction to exercise it in the case presented by this petition. The filing of an appeal bond, if such be the fact, is but a preliminary step in the perfection of an appeal. Complete jurisdiction, for all the ordinary purposes of the appeal, is not acquired until the transcript shall have been filed. Having filed an appeal bond, the appellant is under no compulsion to obtain and file a transcript in this court, but may abandon the appeal. In case of his failure to file the transcript within the prescribed period, the appellee may obtain and file one at his own cost, if
Without such a transcript there is no proper foundation for the exercise of discretion upon a prayer for an order either affecting the merits of the appeal or the charges incidental to its effective prosecution. Even if the appellate court would have the power, after acquiring complete jurisdiction in the manner indicated, to make an order compelling the appellee to advance the money necessary to the prosecution of the appeal, the better practice would be to apply to the trial court for such an order, as was in fact done in this ease. The power of the trial court to make such an order on behalf of the appellee from a decree awarding alimony, has been affirmed in a recent case. Sparks v. Sparks [ante, p. 356],
Moreover, in order to grant the prayer of the petitioner, the court, if vested with the power, would be compelled not only to act without the knowledge of the facts to be obtained from the transcript of the proceedings below, which is, in part at least, necessary to the exercise of a reasonable discretion, but also, in advance of the hearing, to reverse in part the decree from which the appeal is sought to be prosecuted.
The petition must be denied, with costs, and it is so ordered.