108 P. 10 | Mont. | 1910
delivered the opinion of the-court.
This cause was heretofore before this court on appeal by defendant from a judgment in favor of the plaintiff. (Rumping v. Rumping, 36 Mont. 39, 91 Pac. 1057, 12 L. R. A., n. s., 1197, 12 Ann. Cas. 1090.) The judgment was reversed, and thereafter the defect in the complaint, which was pointed out by this court, was cured- by amendment. The cause, having been brought to .issue and transferred to Lewis and Clark -county for trial, was tried, and a general verdict in plaintiff’s favor returned. The district court adopted the jury’s finding, made.
Section.3677, Revised Codes, provides: “While an action for divorce is pending the court or judge may, in its or his discretion, require the husband to-pay as alimony any money necessary to enable the wife to support herself or her children, or-to prosecute or defend the action.” Appellant concedes that under the provisions of this section the allowance of money to-the defendant to carry on the litigation with the plaintiff was-a matter within the sound legal discretion of the trial court or-judge, but insists that before the order could properly be made,,
It is aptly said that the first, second and third grounds of the motion for a new trial were necessarily passed upon by the court adversely to the defendant, when that court adopted the finding of the jury and made its special findings in plaintiff’s favor; and, while this is true, the same court may nevertheless again pass upon them, in considering the motion for a new trial. (White v. Barling, 36 Mont. 413, 93 Pac. 348.)
It is said by counsel for appellant in his brief: “The fourth and last ground, ‘errors of law occurring at the trial,’ etc., is likewise unavailing, for the reason that in an equity case er
We agree with counsel for appellant that it was incumbent upon the moving party to show the necessity for the allowance. In 14 Cyc. 752, it is said: “The wife must show upon her application for temporary alimony that she has no means under her control sufficient to maintain herself pending the litigation. If she has sufficient means of her own to provide for her separate maintenance, no such alimony will be allowed.” It is conceded, also, that the rules governing allowances for suit money and expenses of litigation are the same as those which apply to allowances made for temporary alimony.
The evidence offered on the hearing of this motion discloses that the cost of the transcription of the stenographer’s notes .of the proceedings will be approximately $100. The order makes an allowance of $150 for that purpose. It is scarcely necessary to say that a court is never warranted in allowing more than is necessary for the purpose to which it is to be applied; and we imagine that the amount of the order was a
Modified and affirmed.