32 Fla. 403 | Fla. | 1893
Norman J. C. Shrader filed a suggestion stating that lie is a defendant to a certain bill filed in DeSoto Circuit Court by Aurelia Shrader to set aside a decree of ■divorce which he had obtained against her. and that to such bill he filed a demurrer, and that the demurrer was overruled and he appealed to this court from the ■order overruling the demurrer, aud that such appeal is
To this suggestion Judge Phillips has demurred, and filed a brief in support of the demurrer.
The appeal has transferred the cause to this court for a hearing here on the demurrer; or, in other words, a rehearing in this court, as to the sufficiency of the bill to require an answer from the defendant. Southern Life & Trust Co. vs. Cole, 4 Fla., 359. The order appealed from adjudged the sufficiency of the bill, and required the defendant to plead within twenty days, and the purpose of the supersedeas was to stay any further proceedings in the cause under this order until this court should decide and remand the-cause. Section 1458, Revised Statutes. Should we find there was no cause of action stated in the-bill, we could do no more for the complainant than remand the case with leave to complainant to amend and for a dismissal of the bill in default of amendment, within due time. The Circuit Judge obviously has concluded that alimony and suit money are allowable to the female party to the suit, in a case like this, as in.
The power of the Circuit Court as to the équities and rights of the complainant dependent upon the sufficiency of the bill, has been suspended by the superse-deas until this court shall pass upon the question of of its sufficiency to entitle her to any relief. The proceeding for alimony and suit money is not distinct from or independent of the sufficiency of the bill.. Bishop on Marriage and Divorce, Section 423; Worden vs. Worden, 3 Edward’s Chy., 387; Ballentine vs. Ballentine, 1 Halst. Chy., 471; Krause vs. Krause, 23 Wis., 354; Walling vs. Walling, 1 C. E. Green, 389; Weishaupt vs. Weishaupt, 27 Wis., 621; Wood vs. Wood 2 Paige 108; Rose vs. Rose, 11 Paige, 166; Goldsmith vs. Goldsmith, 6 Mich., 285.
The cases relied on by Judge Phillips are: Ex parte King, 27 Ala., 387; Miller vs. Miller, 43 Iowa, 325; Coffee vs. Coffee, 14 Mich., 463; Moe vs. Moe, 39 Wis., 308; Reilly vs. Reilly, 60 Cal., 624; Hunter vs. Hunter, 100 Ill., 477. In the Alabama case there was an order allowing temporary alimony to be paid quarterly, and of suit money, and subsequently there was a decree of divorce a vinculo, in favor o t the wife, “and an allowance out of the estate of the defendant,” and a refer-
We see nothing in the authorities relied on that impresses us with the correctness of the position taken by the respondent.
The demurrer will be overruled.