270 P. 995 | Cal. Ct. App. | 1928
On December 12, 1927, the trial court made and entered its order that the appellant pay to the respondent herein the sum of $500 as and for her attorney's fees and actual costs not to exceed $100 — the order being made to enable the respondent to properly present her cause on an appeal taken to this court by the appellant herein from an order theretofore made awarding the plaintiff and respondent alimony in a divorce proceeding theretofore tried in the superior court of Yuba County, between the parties hereto. The order awarding alimony, as herein stated, was made on the twenty-first day of October, 1927. The final decree in said cause was entered on the twenty-fourth day of October, 1927, in which was incorporated a provision requiring the payment of $175 per month for the support and maintenance of the respondent, the plaintiff in that action, until the further order of the court. The defendant and appellant herein having appealed therefrom, the court, upon application of the plaintiff and respondent herein, made and entered the order first above referred to.
[1] The appellant's contention upon this appeal is that the superior court was without jurisdiction to make the order awarding the plaintiff suit money upon this appeal, because of the provisions of the interlocutory decree in the main case which required that each party pay his own counsel fees. It is then assumed that the interlocutory decree is res adjudicata upon the question of attorney's fees; that it establishes the law relating to this proceeding, and therefore that the trial court possessed no jurisdiction to make any provision awarding counsel fees and costs to the respondent upon this proceeding. In making this contention appellant overlooks the fact that the power of the court in this proceeding is not controlled by the terms of *174 the interlocutory decree. The court had in view the making of an order which would enable the respondent to properly present her cause in opposition to the contentions of the defendant in his appeal from the order of the trial court made on the twenty-first day of October, 1927, requiring payment of alimony. The respondent's opposition to the defendant's appeal being made in good faith, the trial court, under the terms of section 137 of the Civil Code, had jurisdiction to make the order allowing the counsel fees and costs involved in this proceeding. Some questions are raised upon this appeal which were presented to this court in an action between the same parties, numbered 3469, and decided adversely by this court to the contentions of the appellant herein on September 18, 1928, in an action wherein the parties are the same as in this proceeding.
Precisely the same contention made in this case was ruled adversely to the appellant in the case of Whiting v. Whiting,
As no contention is made that the amount allowed is excessive, it follows that the allowance made by the trial court should be approved and the order is therefore affirmed.
Finch, P.J., and Hart, J., concurred.