Duxstad v. Duxstad

Scott, Justice.

This is an action for divorce and was commenced in the district court of Daramie County by the plaintiff in error as plaintiff against the defendant in error as defendant upon the ground of cruelty. Issue was joined and the case was tried to the court, and at the conclusion of the trial the court made and rendered its judgment of dismissal on the ground that the court had no jurisdiction over the subject matter of the suit. There is one child of tender age as the issue of their marriage, which has been and is in the custody of its mother. During the pendency of the action in the lower court temporary alimony to the amount of $30 per month for the support of herself and child was allowed to her, but since the dismissal nothing has been paid, on the ground, as we understand, that the dismissal vacated the alimony order. Upon an adverse ruling on her motion for a new trial the plaintiff has brought the case to this court on error and has here filed her motion setting forth that she is without means to support herself and child pending these proceedings, and also without means to further prosecute the case, and asks that this court make a reasonable allowance for such purposes. The motion is supported by affidavits and there are also affidavits to the effect that her appeal is a meritorious one. The motion is resisted on the ground that it calls for the exercise of original and not appellate jurisdiction.

*400 The authorities are not in harmony on this question. It may be conceded that if the granting of the motion involves original jurisdiction, then this court has no power to grant it. Our attention is called to the provisions of our constitution. Section 2, Article V, is as follows: i'The supreme court shall have general appellate jurisdiction coextensive with the state, in both civil and criminal causes, and shall have a general superintending control over all inferior courts, under such rules and regulations as may be provided by law.” Section 3 of the same article provides : “The supreme court shall have original jurisdiction in quo warranto and mandamus as to all state officers, and in habeas corpus. The supreme court shall also have power to issue writs of mandamus, review, prohibition, habeas corpus, certiorari, and other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction. Each of the judges shall have power to issue writs of habeas corpus to any part of the state upon petition by or on behalf of a person held in actual custody, and may make such writs returnable before himself or before the supreme court, or before any district court of the state or any judge thereof.”

It is urged that these provisions of the constitution inhibit this court from entertaining jurisdiction of the matter here involved and in support of such contention the following cases are presented, viz.: Reilly v. Reilly, 60 Cal., 624 ; Hunter v. Hunter, 100 Ill., 477 ; Kesler v. Kesler, 39 Ind., 153 ; State ex rel. Clarkson v. The St. Louis Court of Appeals, 88 Mo., 135 ; Muir v. Muir, 87 S. W. (Ky.), 1070.) It was sought upon argument to show that there is some distinction between the provisions of the constitutions of these states and those where a different judicial interpreta-tain obtains, but we find upon examination that there is practically no difference. It is said in 14 Cyc., at page 745: “The authorities differ as to the power of an appellate court to grant an order directing the pa)unent of temporary alimony and suit money upon an appeal in a divorce action. In *401 some jurisdictions such power is denied, but the weight of authority is in favor of the exercise of the power.”

In those jurisdictions where the power is exercised it is not put upon the ground nor is it claimed to be the exercise of original jurisdiction. The right to grant such allowance in the court below exists independent of statute. The statute is only confirmatory of the common law. Upon an original application to the appellate court for counsel fees it was said in Lake v. Lake, 16 Nev., 363 , 369: “No statutory provision authorizes an allowance for counsel fees in this court. But such right has been exercised by courts of similar jurisdiction in conformity with the decisions of the ecclesiastical courts of England. (Goldsmith v. Goldsmith, 6 Mich., 285 and Phillips v. Phillips, 27 Wis., 252 .) The exercise of such authority is based upon the presumption that jurisdiction in divorce cases carries with it by implication the incidental power to make such allowances. The power is indispensable to the proper exercise of jurisdiction in guarding the rights of wives.”

The question is more fully discussed in Lake v. Lake, 17 Nev., 230, 237 , where it is held that a grant of appellate jurisdiction necessarily implies the grant of all powers necessary to the complete exercise of suth jurisdiction. The question was discussed in Prine v. Prine, 36 Fla., 676 (34 L. R. A., 87), and it was there held that an original application to an appellate court in which the suit was pending for allowance of temporary alimony, counsel fees and suit money to the wife pending the proceedings does not call for the exercise of original jurisdiction, hut may be granted in aid of and as an incident to its appellate jurisdiction. In Pleyte v. Pleyte, 15 Colo., 125 ( 25 Pac., 25 ), the court say: “Defendant’s counsel deny the jurisdiction of this court to grant such relief. The practice of appellate courts in respect to applications of this kind is by no means uniform. By Section 1098, Gen. St., the jurisdiction to grant alimony pendente lite is expressly conferred upon the district courts, but counsel fees and suit money are not *402 specified; nevertheless such allowances have been sustained by this court. Hence, the jurisdiction does not depend upon statute.” The court in that case granted the motion, basing its right to do so on the ground that it was in aid of its appellate jurisdiction.

In Wagner v. Wagner, 36 Minn., 239, 243 , the court say: “The appellant makes a motion in this court for an allowance to enable her to prosecute 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 sum as may be necessary to prosecute or defend an appeal in'this court; but as this appeal is now decided, and the case goes back to the district court, which has ample power in the premises, we decline to consider appellant’s application.”

In many cases the power to make the order has not been discussed. Such power has been assumed as a matter of course without objection thereto and the relief has been granted upon a proper showing. In the following cases, in addition to those airead)’’ referred to, appellate courts have acted upon similar motions granting them on a sufficient or denying them upon an insufficient showing: Van Duzer v. Van Duzer, 70 Ia., 614 ; Day v. Day, 84 Ia., 221 ; Krause v. Krause, 33 Wis., 354 ; Phillips v. Phillips, supra; Varney v. Varney, 54 Wis., 422 ; Friend v. Friend, 65 Wis., 412 ; Pauly v. Pauly, 69 Wis., 419, 425 ; Chaffee v. Chaffee, 14 Mich., 276 ; Zeigenfuss v. Zeigenfuss, 21 Mich., 414 ; Van Voorhis v. Van Voorhis, 90 Mich., 276 ; Disborough v. Disborough, 51 N. J. Eq., 306; Grant v. Grant, 5 S. Dak., 1; 57 N. W., 1130 ; Pollock v. Pollock, 7 S. Dak., 331; Mercer v. Mercer, 19 Colo. App., 51 ( 73 Pac., 662 ); Hart v. Hart (Colo. App.), 73 Pac., 35 ; Hall v. Hall, 77 Miss., 741 ( 27 So., 637 ); Willits v. Willits (Neb.), 107 N. W., 5 L. R. A. (N. S.), 767. It will be observed that such relief in an appellate court is not a matter of course, but can be granted only upon a showing of the necessities of the wife, the financial ability of the husband and that the *403 appeal is taken in good faith. When allowed by appellate courts, it is upon the theory that the allowance is necessary and proper to enable the wife to maintain her rights on the appeal, since being without means, she could not otherwise do so, and thus that such an allowance is in aid of the exercise of the appellate jurisdiction.

We are of the opinion that by the great weight of authority this court in the exercise of its appellate jurisdiction may consider the motion, and make such order in the premises as may be deemed advisable. The defendant has not been heard upon the merits of the application and before making any order we think he should be given a reasonable time to file such affidavits touching the matter as he may deem, advisable, and an order fixing the time within which he may do so will be entered.

Potter, C. J., and Beard, J., concur.