42 W. Va. 460 | W. Va. | 1896
Two suits were pending in the Circuit Court of Ritchie county, one in the name of Martha E. Wass against William Wass, and the other in the name of William Wass against Martha E. Wass. In the last named suit the plain
Such proceedings were had in the ease of M. E. Wass against William Wass that on the 21st day of February, 1891, a decree was entered therein granting the plaintiff a divorce from bed and board, and costs, including an attorney’s fee of twenty dollars, to be paid her attorneys, and which, in addition to the sum of one hundred dollars, before allowed them by the court, was directed to be in full of their services to that date. On the 1st day of September, 1893, it was ordered in said cause that all suit money and alimony allowed plaintiff’ against the defendant do cease and determine, and on the 28th day of October, 1898, it was ordered that said cause be dropped from the docket, having been theretofore determined.
On the 1st day of July, 1893, a final decree was rendered in the case of William Wass against Martha E. Wass, which decreed that on the ground of willful and continued desertion and abandonment the complainant, William Wass, be forever divorced from Martha E. Wass, and that for said cause Martha E. Wass be forever divorced from William Wass, and that the bond of matrimony heretofore entered into and celebrated between them be dissolved, and they each relieved and released from the bonds thereof; and that the rights of each, either initiative or consummate, in the property of the other, real or personal, from that time forth do cease and determine; that the complainant do pay the sum of twenty five dollars to the counsel of defendant as additional counsel fees, and that all suit money and counsel fees further do then cease.
An appeal was applied for and obtained by the .defendant, M. E. Wass, and on the 16th day of November, 1895, this Court set aside the two decrees complained of entered on the 1st day of September, 1893 — the one in the case of M. E. Wass against William Wass, stopping the allowance and further payment of the wife’s alimony; the other in the case of William Wass against Martha E. Wass, decreeing a divorce from the bonds of matrimony — and remanded said causes with directions to dismiss the bill of plaintiff,
As soon as the mandate of this Court had been recorded in the circuit court, the said M. E. Wass filed a petition asking the circuit court to allow her counsel fees to pay her attorneys for prosecuting her case in this Court, and also to restore her alimony. And the said William Wass also filed a petition setting forth the amounts of money he had been compelled to pay in the shape of costs, counsel fees, and alimony by reason of the litigation with his wife, praying that the alimony allowed the said M. E. Wass be entirely stopped, and that her suit be dismissed, and that the court might make such order in regard to costs as might be right and proper, and that no costs be paid except those in this Court. The petition of William Wass was answered by M. E. Wass, and on the 28th day of March, 1896, the case was heard upon said petitions and answers, and the court decreed that said M. E. - Wass be allowed the gross sum of one hundred and twenty dollars as a reasonable and proper sum for her alimony, and it was decreed that she recover that sum in gross, or, at the election of William Wass, ten dollars per month, payable on the 1st of each month, until said gross sum was discharged; that the bill of William Wass against M. E. Wass be dismissed, with costsi and the chancery cause of M. E. Wass against William Wass be retained on the docket of the court, with leave to either party to apply by way of petition, or by any other proper proceedings, for any change or modification of the decrees in said cause; and from this decree M. E. Wass applied for and obtained this appeal.
The first assignment of error is as to the action of the court in overruling the appellant’s objection to William Wass’petition and answer, allowing the same to be filed. This petition was in the nature of an answer to the petition of M. E. Wass, in which petitioner was setting forth his reasons why the petition of M. E. Wass should not be allowed to be filed, or, if filed, that its prayer should not be allowed; and we can see no objection to its being filed.
The next assignment of error is that the circuit court refused to allow counsel fees to said M. E. Wass for services rendered in the Supreme Court. Now, while it is true that section 9 of chapter 64 of the Code allows the court in term or the judge in vacation, during the pendency of the suit, to make any’ proper order to compel the man to pay any sum necessary for the maintenance of the woman, and to enable her to carry on her suit, yet nothing is said about the appellate court in said statute, and we must regard it as a matter submitted to the sound discretion of the circuit court under all of the circumstances, including the condition of the parties. The discretion has been exercised in this case by allowing one hundred and twenty dollars for counsel fees in addition to what had already been allowed at different times; and we think the legislature intended that this discretion should be exercised by the circuit court, being nearer to and more in touch with the parties and their circumstances and surroundings; and it was not intended that this Court should review such discretion when exercised unless it is made to appear that it had been grossly abused, and this we can not say in this case. Barton, in his Chancery Practice (volume 1, p. 315) says: “The amount of alimony to be allowed is matter of discretion to be exercised according to established principles, and upon a view of all the circumstances of the case. It is common also to distinguish between the temporary alimony granted during
Eor these reasons the decree complained of is affirmed, with costs and damages.