Brasch v. Brasch
| Decision Date | 16 December 1896 |
| Docket Number | 6945 |
| Citation | 69 N.W. 392,50 Neb. 73 |
| Parties | MATILDA BRASCH, APPELLEE, v. HERMAN BRASCH, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Madison county. Heard below before JACKSON, J. Affirmed.
AFFIRMED.
Robertson Wigton & Whitham, for appellant.
Powers & Hays, contra.
In the district court of Madison county, Matilda Brasch sued her husband, Herman Brasch, for a divorce. As a basis for her action she averred that her husband had been guilty of extreme cruelty toward her and was physically incompetent at the time of their marriage. The district court by its decree dismissed the action of Mrs. Brasch and taxed the costs of the action to her husband, and at the same time awarded her a decree against him for the sum of $ 100 for "costs and expenses incurred in the prosecution of the suit." From this part of the decree Herman Brasch appeals.
The argument is made that the court having dismissed the wife's action, was without authority to render a judgment against the husband for the "costs and expenses" incurred by the wife in the prosecution of the suit. Section 12, chapter 25, Compiled Statutes, is as follows: "In every suit brought either for a divorce or for a separation the court may in its discretion require the husband to pay any sum necessary to enable the wife to carry on or defend the suit during its pendency, and it may decree costs against either party, and award execution for the same," etc. The theory of appellant's counsel seems to be that this judgment of the district court awarding the wife "costs and expenses" incurred in the prosecution of the suit could have been made only by the court before the final decree was pronounced; or, in other words, that the decree appealed from was not rendered during the "pendency" of the action within the meaning of the statute quoted above. We do not think this contention is tenable.
In Wegman v. Childs, 41 N.Y. 159, it was held that an action was pending, though judgment had been recovered therein, so long as such judgment remained unsatisfied. While no provision of our Code declares for what length of time an action shall be deemed pending, we think that it pends at least from its commencement until its final determination on appeal or error, or until the time fixed by statute for prosecuting an appeal or an error proceeding has expired; and that the order appealed from here was made during the pendency of the action in which it was made, within the meaning of the statute quoted above. (Link v Connell, 48 Neb. 574.) Doubtless a district court, in a divorce suit, before the trial thereof, is invested with authority, upon application and a showing being made therefor, to order the husband to pay to the wife sufficient money to support her during the pendency of the litigation to pay her reasonable counsel fees and other expenses necessary to enable her to prosecute or defend the action; and the court may compel the husband, as a condition precedent to further prosecute or defend his suit, to comply with the order made. But it by no means follows that if such an order for suit money or temporary alimony is not made by the court before the trial of the case that the court is divested of jurisdiction or authority to award the wife suit money or temporary alimony in the decree rendered. Or, to paraphrase the language of Bishop, the district court may make up by its decree at the close of the suit what was lacking in justice during its progress.
The Code of Civil Procedure of the state of New York provided that such allowances may be made from time to time during the pendency of an action for divorce as are necessary to enable the wife to carry on or defend the action. Construing this the court of appeals of that state, in McBride v. McBride, 23 N.E. 1065, held that where a judgment of divorce had been awarded the wife and the husband had appealed, that the court had authority to make an order directing the husband to pay such sums as might be necessary to enable the wife to defend the appeal.
Section 137 of the Code of Civil Procedure of the state of California provides that when an action for divorce is pending the court may in its discretion require the husband to pay, as alimony, any money necessary to enable the wife to support herself or her children or to prosecute or defend the action. Bohnert v. Bohnert, 27 P. 732, was an action for divorce in which a decree was rendered against the wife. The supreme court of California held that the district court in which the decree was pronounced was invested with authority to make an order compelling the husband to pay into the court a sum of money sufficient to enable the wife to employ counsel and pay the expenses for prosecuting an appeal.
O'Brien v. O'Brien, 19 Neb. 584, 27 N.W. 640, was an action...
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