26 S.D. 70 | S.D. | 1910
The appellant brought this action in the circuit court seeking to obtain a decree of divorce against the respondent. The cause having been tried and a decree entered therein against the appellant and a new -trial denied, the cause was appealed and is upon the present calendar of this court. The appellant has filed his abstract and brief upon appeal, and the respondent now comes into this court and seeks an order requiring the appellant to pay her certain sums of money as temporary alimony pending this appeal and suit money upon this appeal, and asks, further, that -her time for filing brief and amended abstract upon appeal be extended until such order is complied with.
The appellant contends that -this -court has no jurisdiction to grant an order for alimony and suit money; it being the contention of the appellant that the granting of such order is the exercise of original jurisdiction and that, therefore, under the Constitution of this state, the power is not vested in this court. Appellant -has presented us with an extensive brief, and it must be conceded that there is considerable authority to be found in support of his contention, but we are not convinced that this court has been in error in its former rulings upon this question. The appellant contends that section 90 of the Civil Code of this state, by which section it is provided, “while an action for divorce is pending, the court may, in its discretion, require a husband to pay as alimony any money necessary to- enable the wife to support herself or her children or to present or defend the action,” relates wholly to the trial court. We are inclined to- agree with this and believe that, under said section,- jurisdiction rests in the trial
The question now before us was brought directly to the attention of this court by the briefs in the case of Pollock v. Pollock, 7 S. D. 331, 64 N. W. 165. Authorities were presented upon both sides of the proposition, and, although there is no discussion of such authorities and the decision therein is silent on this point, yet the court necessarily passed thereon, as it held that suit money should be paid in that case upon the appeal. And again in the case of Drake v. Drake, 21 S. D. 182, no N. W. 270, this court granted both alimony and suit money, pending the appeal. That the granting of alimony and suit money is a mere incident to an action for divorce and an order therefor may be made by the court before which the cause is then pending is supported by the decisions of a large number of states. In Wagner v. Wagner, 36 Minn. 239, 30 N. W. 767, it was said: “The appellant makes the motion in this court for an allowance to enable her to present this appeal. We have no doubt of the power of the court, upon a proper showing, in a suit for divorce, to make an order requiring the husband to pay to the wife such sums as may be necessary to enable her to prosecute or defend an appeal in this court.” Van Voorhis v. Van Voorhis, 90 Mich. 276, 51 N. W. 281; Id., 94 Mich. 60, 53 N. W. 964; Weishaupt v. Weishaupt, 27 Wis. 621; Prine v. Prine, 36 Fla. 636, 18 South. 781, 34 L. R. A. 87; Disborough v. Disborough, 51 N. J. Eq. 306, 28 Atl. 3; Lake v. Lake, 17 Nev. 230, 30 Pac. 878; 14 Cyc. 745. Phe Supreme Court of Mississippi in
From the showing made in this court, it appears that, pending the trial in the lower court and for the purposes of such trial, there was allowed to the respondent $300 attorney’s fees, $50 suit money, as well as $40 per month as tempprary alimony; that by the decree of such court, there was allowed to respondent for maintenance and support of herself and minor children the sum of $100 per month until June 10, 1912, and from that time on an increased sum for a fixed period; that appellant has failed to comply with the decree ordering payment of permanent alimony and stayed the enforcement of such decree by his undertaking upon this appeal, and he has filed herein an affidavit in support of his contention that he is financially unable to make any payments by way of alimony or suit money. It appears, however, that he has expended considerable money in his own behalf in this