63 Mo. App. 411 | Mo. Ct. App. | 1895
The plaintiff sued the defendant for divorce. The grounds alleged were indignities, which the defendant denied. The case was tried on its merits, resulting in a decree for the plaintiff. The defendant applied for an appeal, which was granted. In the order granting the'appeal, the circuit court, on motion of defendant, adjudged that the plaintiff pay to her $100, the estimated cost of the transcript, and the sum of $30 for attorney’s fees in the appellate court, and $5
Where the wife has failed in her suit for divorce, or where there has been a decree against her, the right to an allowance for suit money to enable her to prosecute an appeal is a question which presents some difficulty. There has been something said on both sides of the question by our appellate courts, but the discussions have been outside of the records, and, therefore, not authoritative. State ex rel. Gercke v. Seddon, 93 Mo. 520; State ex rel. Clarkson v. Court of Appeals, 88 Mo. 135; Dawson v. Dawson, 37 Mo. App. 207; Adams v. Adams, 49 Mo. App. 596. Both courts agree that under such circumstances alimony for sustenance (which was the question in judgment in all of the cases) may be allowed, but the supreme court clearly stated in both of its opinions that, under the statute (section 4505 of Revised Statutes), the wife would also be entitled to suit money to enable her to carry on the litigation in the appellate court. This court indicated a different opinion, and reasoned that it would be absurd for the chancellor to adjudge the wife to be the guilty party, and at the same time compel the husband to contribute to the further prosecution of the action.
Upon further consideration we have concluded that the intimations of the supreme court are justified, unless it clearly appears that the appeal of the wife is without merit. That she is entitled in a proper case to support money during the pendency of her appeal is conceded by both courts; for, otherwise, she might be starved into submission, and thus deprived of her right to have her case heard in the appellate court. To refuse her the necessary means to prosecute the appeal
The second point must likewise be ruled against the appellant. It appears from the bill of exceptions that during the pendency of the suit, and only a short time prior to the trial, the circuit court upon an application for alimony pendente lite had heard evidence as
With the concurrence of the other judges, the judgment of the circuit court will be affirmed. It is so ordered.