Cameron v. Cameron

• Court: South Dakota Supreme Court
• Writing for the Court: SMITH
• Citation: Cameron v. Cameron, 30 S.D. 634, 139 N.W. 329 (S.D. 1913)
• Decision Date: 06 January 1913
• Parties: CAMERON v. CAMERON.

30 S.D. 634

139 N.W. 329

CAMERON

v.CAMERON.

Supreme Court of South Dakota.

Jan. 6, 1913.

Appeal from Circuit Court, Davison County; Frank B. Smith, Judge.

Action by Lesbia G. Cameron against Alexander Cameron. From an order that defendant pay suit money, he appeals. Reversed.J. E. Whiting, of Woonsocket, for appellant.

A. J. Daley, of Luverne, Minn., and J. Ingham, of Dell Rapids, for respondent.

SMITH, J.

Appeal from circuit court of Davison county. On the 29th of September, 1898, Lesbia G. Cameron began an action for divorce against the defendant, Alexander Cameron, in Davison county. Defendant entered an appearance and filed an answer which was withdrawn on May 1, 1900, and on May 3, 1900, a decree of absolute divorce was entered. The decree contained no provision relating to alimony. On June 5, 1911, a little more than 11 years after the entry of this decree, Lesbia G. Cameron made application in the circuit court of Davison county for a modification of the decree and for an allowance of a permanent alimony in the sum of $25,000 and attorney's fees of $500. The proceeding was resisted by defendant, and the matter heard on the merits on the 29th day of June, 1911. On that date, the trial court entered an order denying the application and dismissing the proceeding on the merits. Thereafter, on July 1, 1911, the circuit court, without further notice or hearing, entered another order entitled in the same case, and containing, among other recitals, that the court on the 29th day of June had dismissed and denied plaintiff's application for permanent alimony, and that counsel for plaintiff, Lesbia G. Cameron, had thereupon stated she desired in good faith to appeal to the Supreme Court from such adverse order, and that the court, “being now fully advised in the premises, orders that the defendant pay to plaintiff or her attorney the sum of $200 for attorney's fees and expenses within 30 days after notice of appeal from the order made and filed on the 29th of June, 1911, dismissing on the merits plaintiff's application for permanent alimony.” From this order defendant appeals: First, because said order was not made upon proper application of the plaintiff and was without notice to defendant. Second, because the decision of the court made on June 29, 1911, must be assumed to be correct, and defendant may not be compelled to pay the expenses of an appeal by plaintiff.

Appellant in his brief concedes that had plaintiff prevailed, and defendant appealed, an order allowing plaintiff attorney's fees to enable her to defend the appeal in the appellate court would have been in furtherance of justice and might properly be allowed, but contends that where defendant prevails he cannot properly be compelled to pay the expenses of an appeal by the plaintiff.

The question of the right of both the circuit and supreme courts to make allowances for attorney's fees on appeal in divorce cases has been finally put to rest in this state, by the decision of this court in Wells v. Wells, 26 S. D. 70, 127 N. W. 636....