Brown v. Brown

• Decision Date: 08 November 1946
• Docket Number: No. 28222.,28222.
• Citation: 224 Ind. 523,69 N.E.2d 246
• Parties: BROWN v. BROWN.
• Court: Indiana Supreme Court

224 Ind. 523

69 N.E.2d 246

BROWN

v.BROWN.

No. 28222.

Supreme Court of Indiana.

Nov. 8, 1946.

Action by Pearl Brown against Robert Brown for separation from bed and board. From an interlocutory order directing defendant to pay a specified sum per week for support of minor child of the parties and a specified sum as partial fees for plaintiff's attorney, defendant appeals.

Order affirmed.Appeal from Marion Superior Court No. 3; Walter Myers, Jr., Special judge.

Todd & Craig, of Indianapolis, for appellant.

Louis Rosenberg, of Indianapolis, for appellee.

RICHMAN, Judge.

Appellee filed a complaint for separation from bed and board under Chapter 48, Acts 1903, found in Burns' 1946 Replacement beginning with § 3-1230. The complaint also requested ‘a reasonable sum for the support of herself, their minor children and with which to pay her attorney.’ Upon an order to show cause appellant appeared and contended that the court was without jurisdiction to order interlocutory payments in a proceeding of this character. The court however ordered payment of $10 per week in support of a minor child. There was a change of judge and another hearing after which the special judge entered an order to pay $10 per week for the minor child and also ordered appellant to pay $75 as partial fees of appellee's attorney. From the latter order this appeal is taken.

One of the errors assigned is the overruling of appellant's demurrer to the complaint. Apparently this assignment was made on the theory that lack of a good complaint prevents the acquisition of jurisdiction. If this were true, it is sufficient to say that appellant's only objection in the memorandum of the demurrer was ‘that the complaint does not allege any cause such as specified by statute.’ The point is not well taken since the facts alleged clearly state a cause of action within clause (c) of § 3-1230, supra.

It is asserted that no interlocutory orders are contemplated by the statute. This contention was made and overruled in Tracy v. Tracy, 1943, 221 Ind. 590, 50 N.E.2d 662.

Appellant next contends that the title of the act of 1903 was not broad enough to permit such interlocutory orders. This contention is frivolous as appears from the title itself quoted in the note to § 3-1230, supra.

He urges also that the special judge had no right to pass upon appellee's petition for attorney's fees because it had already been ruled upon by the prior judge. The first order did not pass upon the question...