Roby v. Roby

AILSHIE, J.

This is an original application made in this court by Emily H. Roby, plaintiff in the lower court, praying for an order of this court allowing her suit money and attorneys’ fees to enable her to prosecute her appeal from the judgment of the trial court. It appears that the plaintiff was dissatisfied with the judgment of the district court, and filed and served her notice of appeal therefrom, and thereafter applied to the district judge who tried the cause for an order directing the husband to pay into court a sufficient amount to pay court costs and for the printing of the transcript and brief on appeal to this court, and for attorneys’ fees for the prosecution of such appeal in this court. The district judge made an order allowing plaintiff the sum of $75 for such purpose, but she contends that this is not enough, and has made her original application in this court praying for an order requiring the defendant to pay the sum of $250 for costs and disbursements in the preparation of her appeal, and the further sum of $250 for attorneys’ fees in the prosecution of such appeal. The defendant has filed a motion to dismiss the petition and application of plaintiff upon the ground that this court has no jurisdiction to hear and determine such an original application. It should be observed in the consideration of this matter that while an appeal has been taken to this court, the transcript on appeal has not yet been filed.

Section 4927, Revised Statutes, is as follows: “An action is deemed to be pending from the time of its commencement until- *374 its final determination upon appeal, or until the time - for kppeal has passed, unless the judgment is sooner satisfied.’”' .-

- binder the provisions of -this section we conclude that" this action is still pending. ■ ■ •

■ Section 2472, Revised Statutes, provides that “While an action! for'divorce is pending, the court may, in it's discretion,' require the husband to pay as alimony any money necessary- to finable the wife to support herself or her children, or to prose-' cuile 'or defend the action.” ■ . ' ■: :

We- think the ^eourt” referred to -in sectioh 2472, supra, -is' the district court, in which such actions are originally- com-1 menced, and that it is the intention of our. statute to give, to the trial court the jurisdiction to grant alimony and suit money so long as the action is pending, whether in the trial court or upon appeal. The trial judge is ’in a better position than'this court to know the amount of money necessary for the payment of .’costs and disbursements in the prosecution of an appeal and the ability of the husband to meet such requirements. He knows all the facts in the case and the situation and condition of the parties. If we should hold that so soon as a notice of appeal is filed and served in such cases that application for suit money and attorneys’ fees must thereafter be originally made in .this court, it would result in turning the supreme' court into a trial court in such matters; for the reason the record in such case’ would not be before the appellate court, and in order tb apprise it of the facts in the case and the condition, of the parties -and the ability of the husband to comply with- such .order as might be made, it would be necessary to have affidavits from both .of the respective parties made and filed in this court, and such .investigation and determination made here as would be originally made by the trial judge. '. ■

Under subdivision 3 of section 4807, an order made after judgment, as was done in this case, is an-appealable order, and can, only be reviewed in this court upon appeal therefrom.

It is contended by the appellant, or petitioner, that under the terms of section 4814, Revised Statutes, the district court loses' jurisdiction to make such an order as required in this case after an’ appeal has been taken from the judgment in that court! *375 This seetion-provid.es inter alia as-follows: “Whenever an ap-' peal is perfected- as provided in the preceding sections of this ■ chapter/it stays all: further proceedings in the court below upon: the judgment or-order appealed from, or upon the matters'sin-: btaced therein.” . . ' ■

We do not think this contention is correct. The allow'ance • or disallowance of suit money and attorneys’ fees for the prosecution, of such an [appeal is not a part of the “judgment-apr, pealed from,” nor is it a “matter embraced therein.”- ... -

We do not want to be understood as denying the jurisdiction ■of this court to allow either attorneys’ fees or suit- money after the case has been filed in this court upon appeal when the same is proper or necessary to the complete exercise of its appellate jurisdiction.

Under section 9 of article 5 of thq constitution, this court has jurisdiction to review upon-appeal 'any decision of the district courts and may issue “all writs necessary or proper to the.complete exercise of its appellate jurisdiction.”

California has statutes corresponding literally with the sections of our statute above quoted, and it has there been uniformly held that the jurisdiction to make such orders as the' one applied -for in this case lies with the superior court. " (See Reilly v. Reilly, 60 Cal. 624 ; Ex parte Winter, 70 Cal. 291 , 11 Pac. 630 ; Larkin v. Larkin, 71 Cal. 330 , 12 Pac. 227 ; Bohnert v. Bohnert, 91 Cal. 428 , 27 Pac. 732 .).

It will be seen from the authorities that the supreme court -of California has denied its jurisdiction to make such orders under any • circumstances, saying that “The appellate jurisdiction can be exercised without’;’ assuming the power to make any' order or issue any writ for such purpose in the “complete exercise of its appellate jurisdiction.” 'We cannot go to'this extent, and in that respect do not approve of the rule theré announced/ The same doctrine seems to have been maintained in Illinois, Wisconsin' and Missouri. A contrary view', however, has been taken in this matter in Florida and Nevada.

Counsel for appellant seems to rely upon the authority of Lake v. Lake, 17 Nev. 230 , 30 Pac. 878 , wherein the supreme court of Nevada reviews the authorities, and under the pro *376 visions of the constitution and statutes of that state holds that1 upon the appeal being taken, the district court loses jurisdiction and that such application may originally be made in the appellate court. That authority may be fairly said to support the position contended for by appellant, but we think the-sounder and better rule is as above announced.

The motion to dismiss the petition and application of ap~' pellant is granted and the application will be dismissed. No-costs awarded.

Sullivan, C. J., and Stockslager, J., concur.