6 S.D. 284 | S.D. | 1894
This was an action for a' divorce, brought by the plaintiff. The defendant answered, and filed a cross complaint praying for a divorce from the plaintiff. A trial was had, resulting in a judgment in favor of bh defendant upon her
The trial for divorce was had in March, 1892. In August, 1892, a trial was had to determine the amount of alimony to be awarded to the said Eliza T. Williams, the respondent, resulting in findings and judgment for the sum of $30,000 as above stated. The motion for a new trial was made and determined in August, 1893. A motion is made in this court to dismiss the appeal in this case upon the grounds stated in the following notice: ‘ ‘That the said appeal is bad for duplicity in this, to wit: That in and by said notice of appeal the said appellant appeals to this court from the judgment rendered herein on the 31st day of August, 1892, in favor of the respondent and against the appellant for the sum of $30,00) alimony and $501.92 costs; and likewise appeals from that certain order entered herein on the 31st day of August, 1892, ordering the plaintiff, William Williams, within fifteen days from that date to pay to the defendant, Eliza T. Williams, the sum of $2,200 as and for her counsel fees and temporary alimony in this action, and from the whole of said judgment and order; and likewise appeals •from-the order entered herein on the 19th day of August, 1893, denying and overruling plaintiff’s motion for a new trial herein and to vacate and set aside said judgment and order of August 31, 1892; and that, although the said appeal is double as aforesaid, but one undertaking on appeal has been served or filed herein.” The notice of appeal is as follows: “Take notice that the plaintiff, William Williams, hereby appeals to the supreme court of this state from the judgment rendered herein on the 31st day of August, 1892, in favor of the defendant for the the sum of thirty thousand dollars alimony, and $504.92 costs; and also from that certain order entered herein on the 31st day of August, 1892, • ordering the plaintiff, William Williams,
That an appeal can be taken from the judgment and order overruling the motion for a new trial in the same notice is not questioned, as this court has held that such a notice of appeal is proper. Hawkins v. Hubbard, (S. D.) 51 N. W. 774. But the difficulty in this case arises from including also in the notice of appeal the order for the payment of $2,200 counsel fees and temporary alimony. This order was made as a separate order, and on the same day that the judgment awarding $30,000 was made and entered. Counsel for appellant contend that the reference to the order in the notice of appeal should be treated as surplus-age, as the order is one that can be reviewed upon the appeal from the final judgment. Without at this time passing upon the question of whether or not the order can be reviewed as an intermediate order, we are of the opinion that it may properly be treated as surplusage in the notice of appeal, and disregarded. The decision in the case of Hackett v. Gunderson, 1 S. D. 479, 47 N. W. 546, decided by this court, does not rule this case, as the appeal in that case was from two appealable orders. The orders being of the same character, this court held that the appeal was a double appeal, and not an appeal from either order, as the court could not determine from which order the appellant really intended to appeal. But in the case at bar an appeal is taken from the judgment and from the order overruling a motion for a new trial. The evident purpose and intention of the appeal is to obtain a review of the judgment. Where the principal object of taking the appeal is so apparent from the record, we think this court is justified in presuming
This brings us to the principal question presented by this appeal, namely: Does the evidence justify the finding of the court that appellant was possessed of personal property of the value of not less that $125,000, and that the sum of $30,000 is a just, reasonable, and suitable allowance to be made by the appellant to the respondent for her support during her life, having regard to all the circumstances of the parties respectively? These findings of fact are challenged by the appellant on the ground that the evidence is insufficient to justify them. It becomes necessary, therefore, for this court to review the evidence, and ascertain whether or not there is a preponderance of evidence against the findings of the court. Randall v. Burk Tp. (S. D.) 57 N. W. 4. Unless the evidence does so preponderate in favor of the contention of the appellant the judgment cannot be disturbed. The evidence is exceedingly voluminous, the record covering over 200 closely printed pages and we shall not attempt to do more than to state our conclusions resulting from its examination. There is a marked differance between the claims of the respective parties as to the value of the appellant’s property, appellant’s counsel contending that the evidence only shows that he had property, at the time of the trial, of the value of $12,500, while the counsel for respondent insists that it was of a greater value than that
The undisputed evidence is that the property of the corporation was derived from the firm of Williams & Hoyt, and was inventoried at the time the corporation was formed at about $110,000,.including the good will of the firm. It does not appear from the evidence that any additions were made to the property of the corporation after the transfer to it by the firm Williams & Hoyt. The corporation was organized with a
455 shares slock at $100 per share.................................. $45,500
Other personal property........................................... 6,200
Real property, less mortgage..............'....................... 5,000
Total........................................................ $56,700
Temporary alimony........................................$ 800
Temporary- alimony and counsel fees........................ 2,200
Alimony as per judgment .........’......................... 30,000
$33,000
Remaining for appellant.................................... $23,700
The allowance of $30,000 by the court, therefore, was clearly excessive, in view of the fact that there are no children to be provided for by respondent. After a careful review of the evidence, we are of the opinion that the learned circuit court overestimated the value of appellant’s property, and by reason thereof imposed too great a burden upon him, and t]jat the allowance fixed by the court in its judgment should
The counsel for appellant further.contend that the judge by whom the circuit court of the Seventh circuit was held had no authority to hold said court at the time the judgment for alimony was rendered, and therefore the court had no jurisdiction to render the same. But this contention cannot be sustained. The judge who held the March term of that court for Judge Gardner was requested by him to hold the term, and the term at which said judgment was rendered was the adjourned March term. The record fully establishes the fact that the judge was properly holding the term. But, if this was not so shown, this court would presume that the judge presiding was properly requested to so preside. Riggs v. Owen (Mo. Sup.) 25 S. W. 356.
The appellant also contends that the court had no authority to award alimony payable in one sum, instead of payable monthly or annually. But we are of the opinion that our statute fully authorizes the court to render the judgment complained of. The statute reads as follows: “Where a divorce is granted for an offense of the husband, the court may compel him to provide for the maintenance of the children of the marriage, and to make such suitable allowance to the wife for her support during her life, or for a shorter period, as the court may deem just, having regard to the circumstances of the parties respectively; and the court may from time to time modify its orders in these respects.” Comp. Laws, sec. 2584. The California Civil Code contains identically the same section; and in Robinson v. Robinson, 79 Cal. 511, 21 Pac. 1095, the question
Counsel for appellant further contend that the order made by the circuit court on August 31, 1892, for the payment by appellant of $2,200 temporary alimony and counsel fees is an intermediate order, reviewable on appeal from the judgment. But we cannot agree with the counsel in this contention. An intermediate order which can be reviewed on an appeal from the judgment is one that involves the merits, and necessarily
In conclusion it may be proper to state that, notwithstanding that under the views herein expressed the judgment for the $30,000 permanent alimony should be modified and reduced to $15,000, the appellant, by reason of his failure to comply with the order for temporary alimony and counsel fees, is not in a position to entitle him to ask for such modification. But in view of the fact that appellant’s attempted appeal from said order was probably taken in good faith, we are of the opinion that upon the payment by him of the sum specified in said order, at Rapid City, S. D,, to the counsel for respondent, on or before the 1st day of June, 1894, the judgment of the circuit court should be modified as herein indicated; the costs of this appeal to be taxed against the appellant. If, therefore, such payment shall be made within the time specified, a judgment in accordance with this opinion will be entered in this court.