27 Wis. 621 | Wis. | 1871
OPINION ON FIRST APPEAL.
According to. the rule established by this court as to what should be deemed a frivolous pleading, the demurrer in this • case clearly was not of that character. Whether the demurrer would have been held bad on argument, is a question not now before us-. This is an appeal from the order adjudging the demurrer: frivolous; and' the only question, therefore, is, whether ■ the demurrer can be considered frivolous, and not whether it was well taken. When the appeal is from a judgment on a demurrer for frivolousness, then this court has held that if the demurrer was bad the judgment would not be reversed,, although it might think the court below erred in holding the demurrer frivolous. The reasons for this ruling are given in Cobb v. Harrison, 20 Wis. 625, and Decker v. Trilling, 24 id. 610.
The circuit court ordered and adjudged that the demurrer was frivolous, and that the plaintiff have judgment as prayed in the complaint, unless the defendant answered within twenty days and paid ten dollars costs of the motion. It would seem as if this leave to answer amply protected the rights of the defendant, and that really nothing was gained by the appeal except additional costs and expense. But as we have the power in divorce suits to require the husband to pay the expense of litigation, we have concluded to require that the defendant pay the proper costs of this court, even while we reverse the order. This will not include any attorney’s fee, but merely the fees of the clerk and necessary disbursements.
By the Court. — The order of the circuit court is reversed and the cause remanded for further proceed ings.
OPINION ON SECOND APPEAL.
This is an appeal from an order requiring the defendant to pay to the attorneys of the plaintiff the sum of fifty dollars for the purpose of prosecuting the action. The principal ground for a divorce from the bonds of matrimony is, that the defendant, being of sufficient ability, refuses and neglects to provide for the support and maintenance of his wife and child. The application for suit money was made upon the affidavit of the plaintiff before service of the complaint. The record shows, however, that the complaint was served before the hearing of the application.
It is objected that the application should have been on petition, and not by motion. We fail to perceive much force in this objection. Of course the moving papers should show that an action for a divorce has been actually commenced, and that a meritorious cause
There is a motion for suit money also in this court on this appeal. This motion is granted, and twenty-five dollars suit money is allowed.
By the Court. — The order appealed from is affirmed.