Pollock v. PollockPollock v. Pollock
- Reporters:
- , ,
- Before:
- Fuller
Thе action for a divorce to which this original application for temporary alimony relatеs resulted in plaintiff’s favor, and an appeal taken by the defendant from a decree dissolving the mаrriage is now pending in this court. From the affidavits used in supрort of this motion, and from the abstract filed in the case appealed from the circuit court, it appears that appellant is without means other than a monthly allowance ordered by the triаl court to be paid by respondent, for the support of his wife and their two children, of tender years, which amount she has continually refused, upon the adviсe of counsel, to accept under the decree, upon the theory that her rights on apxDеal may be prejudiced thereby. Although there arе affidavits before us to the effect that respondent is without means, the facts and circumstances disclosed by the record do not fully justify a conclusion that he is unable to provide his impoverished wife with funds sufficient to prosecute her appeal. It clearly appears that he has promptly cоmplied with all orders of the trial court requiring the payment of money for *333the temporary relief of appellant, and has encountered no pеrceptible difficulty in retaining eminent counsel, and in rаising all funds necessary for the prosecution of his action. Moreover, the undisputed evidence sustаins the irresistible inference that he is a young man in excellent health; whose business relations are pеrmanent in their character, and of a nature whiсh enable him to demand and receive fair compensation for his services.
Upon an apрlication to this court for temporary alimony in the case of Grant v. Grant 57 N. W. 1130, 5 S. D. 1, it was said: “The question is not only what the wife ought to have, but what the husband can and ought tо pay.” Sympathizing friends seem to be no longer ablе to contribute to the cause of appеllant, nor to pay the balance due on fees,, disbursements, and expenses incident to her apрeal to this court, which, independently of attorney’s fees, amount in the aggregate to $275. We have looked into the merits of the case sufficiently to bеcome inclined to believe that the apрeal was taken in good faith, and not to harass аnd annoy respondent; and, assuming that he has no means nor resources beyond the salary which it appears from the undisputed evidence he recеives from his father, we conclude that respondent should pay for the use of appellant to her counsel, Coe I. Crawford, Esq., the sum of $275, on or before the 15th day of September, 1895; and it is so ordered.