Chaffee v. Chaffee

• Decision Date: 04 October 1866
• Citation: 14 Mich. 463
• Court: Michigan Supreme Court
• Parties: Maria Chaffee v. Amos Chaffee

14 Mich. 463

Maria Chaffee v. Amos Chaffee

Supreme Court of Michigan

October 4, 1866

Heard October 3, 1866

L Bishop and G. V. N. Lothrop, for the motion.

D. C Holbrook and S. T. Douglass, contra.

OPINION

By The court:

The complainant filed her bill in the circuit court in chancery for a divorce a mensa et thoro. The defendant put in an answer; the case was heard in the court below on pleadings and proofs, and her bill was dismissed after a full hearing upon the merits. She appealed to this court, and a motion is now made by her counsel for temporary alimony, for the costs of the return, of printing the record and brief, and for a reasonable attorney and counsel fee in this court.

This motion is opposed on the ground that the bill does not set forth a case which would authorize a decree for divorce.

As this objection is one which would rest upon the same grounds as a demurrer to the bill, and the defendant did not see fit to demur, but took issue upon the facts, and evidence has been taken which constitutes the great bulk of the record, it is clear that, if the objection to the bill is well founded, this evidence would never have been taken, nor the expense of the printing occurred, if the bill had been demurred to. It would, therefore, be unfair to complainant to deny the motion upon any such ground. The objection, therefore, must be reserved for the hearing of the case.

We think the complainant is entitled to an order for a reasonable attorney or counsel fee in this court; and we therefore allow her one hundred dollars for this purpose. The actual expense of printing briefs must also be allowed. She is also entitled to temporary alimony to commence from the first day of August, at which time the alimony allowed in the court below ceased.

But, in fixing the amount, we do not think we are at liberty to go beyond her actual necessities. We are not at liberty to prejudge the case, by fixing the amount on the same broad principles which would apply in fixing the amount of permanent alimony. We allow her fifty dollars per month from the first day of August last, payable monthly, during the pendency of this suit, or until the further order of the court.

As to the costs of the return and printing, it is urged that a very large portion of the record consists of irrelevant testimony with the printing of which it would be unjust to charge the defendant in any event. As this is a point on...