Ashford v. Ashford

• Citation: 249 P.2d 968,201 Or. 206
• Parties: ASHFORD v. ASHFORD et al.
• Decision Date: 14 November 1952
• Court: Supreme Court of Oregon

Page 968

249 P.2d 968

201 Or. 206

ASHFORD v. ASHFORD et al.

Supreme Court of Oregon, En Banc.

Argued Oct. 16, 1952.

Decided Nov. 14, 1952.

Joseph H. Page, of Portland, for motion.

Henderson & Dickinson, of Portland, for appellant.

Edward A. Boyrie, of Portland, for intervenor-respondent.

WARNER, Justice.

This is on the motion of Edna Mae Ashford, defendant-respondent, for an allowance of attorney's fees for services in preparing her brief and appearance of her counsel in this court in a pending appeal in a suit for divorce wherein the defendant wife prevailed in the lower court.

The application of the respondent is settled by the authority of Edwards v. Edwards, 191 Or. 275, 281 et seq., 227 P.2d 975, where we held that this court is without authority to make such an allowance. We there said in 191 Or. at page 284, 227 P.2d at page 979;

'We realize that the rule to which we adhere may at times work some hardship so far as the allowance of attorneys' fees on appeal is concerned, but it is one that cannot be corrected here by judicial fiat. The legislature has conferred upon the circuit courts the power to grant temporary maintenance to the party not in default during the pendency of an appeal to the Supreme Court. § 9-914, O.C.L.A. However, the power to grant additional suit money to cover the costs of such an appeal has not yet been given to the circuit courts or this court.'

In terms of our own inclination, we reluctantly deny the relief which the respondent seeks and do so solely for the reasons given in Edwards v. Edwards, supra. Her supporting affidavit, if true, delineates a picture of financial hardship and impoverishment which well might deny to the respondent a fair opportunity to adequately present and defend her cause in this court, when the appeal instigated by her appellant husband is heard here on its merits. The apparent injustice flowing from a want of sufficient power here to make an appropriate answer to respondent's request is accentuated by a record which reveals that the appellant husband is an able-bodied man with a substantial income and by the further fact that a parcel of real property involved in the suit threatens to be lost through a pending mortgage foreclosure; but the course followed concerning this and other meritorious motions of like nature must necessarily continue until the legislative assembly evolves some method which will satisfactorily make provision for the alleviation of conditions reflected by the...