Helden v. Helden

Jlppeal — A limony — Surety. The supreme court will grant an order mating an allowance out of the estate of the husband in favor of the wife in order to enable her to defend against special proceedings instituted by the husband after the decree for divorce The rule is the same, where the controversy arises after a decree for divorce, as before. where a party has filed an undertaking to perfect an appeal and the sureties have neglected to justify as to their responsibility, the court will grant leave to the appellant to procure the justification. Though a party appellant may dismiss his appeal, upon the payment of costs, yet the court will not permit him to withdraw the undertaking filed to procure the appeal.

APPEAL PROM CIRCUIT COURT, DANE COUNTY. This case was before this court, 7 Wis. Rep., 296, upon an appeal from an order dismissing a petition for the reduction of alimony granted in a divorce case; where it was decided that the order of dismissal be reversed, and the cause was remanded for further proceedings. The facts of the case are there sufficiently stated for an understanding of the present appeal and motions. After the remanding of the cause, the respondent petitioned the circuit court for counsel fee and for costs, and procured an order to be made in that court, requiring the appellant tft pay to her, or her attorney, the sum of $200, for attorney and counsel fee in this cause, to defend against the application for an issue and trial for adultery on her part; and also to pay the fees of the clerk, sheriff and respondent’s witnesses, taxed at $43 97 ; and, further, ordering an execution to collect the amount The order denied that portion of her petition which asked for the repayment of the costs collected of the respondent upon an execution from the supreme court for the costs of the appellant in the former appeal, but without prejudice to her rights to make application in that court for such relief in relation to the matter as she may be' entitled to. From that order this appeal is taken; and on the 6th of July, 1859, the appellant executed an undertaking, with two sureties, who justified in the sum of $1,000 each. On the 19th of August, Hopkins again moved the court “ for a rule or order allowing the defendant temporary alimony during the pendency of this cause in this court, on appeal, and for an order allowing her costs to defend the appeal taken from the judgment,” &c., “and for such other order,” &c. This motion was accompanied with an affidavit of the-defendant showing her want of means to defend this appeal.