Bordeaux v. Bordeaux

• Decision Date: 02 June 1902
• Parties: BORDEAUX v. BORDEAUX.
• Court: Montana Supreme Court

69 P. 103

26 Mont. 533

BORDEAUX v. BORDEAUX.

Supreme Court of Montana

June 2, 1902

Appeal from district court, Silver Bow county; Wm. Clancy, Judge.

Divorce suit by John R. Bordeaux against Ella F. Bordeaux. A decree was rendered for plaintiff, and a new trial denied, and defendant appealed. Original application by defendant for an allowance of temporary alimony and suit money. Application denied.

McHatton & Cotter, for appellant.

Stapleton & Stapleton and B. S. Thresher, for respondent.

PIGOTT J.

Judgment of divorce was entered in favor of the plaintiff for an offense committed by the defendant. From the judgment and an order refusing her motion for a new trial the defendant has appealed. She now applies to this court for an order requiring the respondent to pay to her the sum of $5,000 as a reasonable fee for the services of her counsel rendered and to be rendered on the appeals, and to pay also the costs of the transcript, of her appearance fee in this court, and of printing her brief for this court; and also requiring the respondent to pay for her support and maintenance pending the appeals a sum in excess of the amount allowed by the district court. The power of this court to grant the order prayed for is challenged by the respondent. By virtue of section 11 of article 8 of the constitution of Montana, district courts have original jurisdiction of action for divorce. While such an action is pending, the district court or its judge may, as is provided in section 191 of the Civil Code, in its or his discretion require the husband to pay alimony and suit money and the "action is deemed to be pending from the time of its commencement until its final determination upon appeal or until the time for appeal has passed, unless the judgment is sooner satisfied." Section 1895, Code Civ. Proc. Whether the district court or judge has power, pending appeal, to require the husband to pay to the wife money necessary to prosecute or defend against an appeal in a divorce case is a question reserved as unnecessary to be decided. As to the conclusion on this point reached in Reilly v. Reilly. 60 Cal. 625, we express no opinion. Suffice it to say that this application seeks to invoke the exercise of original jurisdiction, and that the constitution has not, either expressly or by implication conferred upon the supreme court original jurisdiction in actions for divorce. The source of our jurisdiction is found in section 2 and 3 of article 8 of that instrument, and in neither is there authority for the relief sought by the applicant. To the complete exercise of appellate jurisdiction this court is empowered to issue and to hear and determine such "original and remedial writs as may be necessary or proper." Complete exercise of appellate jurisdiction in the case at bar does not demand such a writ, nor in any wise depend upon its issuance; nor does the appellant ask for it. We remark, also, that section 1730 of the Code of Civil Procedure, providing that whenever an appeal is perfected "It stays all further proceedings in the court below upon the judgment or order appealed from, or upon the matters embraced therein, *** but the court below may proceed upon any other matter embraced in the action and not affected by the order appealed from," does not grant to this court the power which the appellant asks...