Davis v. Davis
| Decision Date | 27 May 1895 |
| Docket Number | 17,412 |
| Citation | 40 N.E. 803,141 Ind. 367 |
| Parties | Davis v. Davis |
| Court | Indiana Supreme Court |
From the LaGrange Circuit Court.
The order is affirmed at appellant's cost.
Ferrall & Hanan and Drake & Merritt, for appellant.
O. L Ballou and A. Ellison, for appellee.
This is an appeal from an interlocutory order entered in the trial court against appellant, requiring him to pay into court the sum of $ 255.40, allowed to appellee for her use in defraying her expenses, including attorney's fees incurred in the prosecution of an action for a divorce against appellant.
The appellant has assigned errors upon the action of the court in refusing to strike out appellee's application for said allowance, and in overruling his motion to set aside the order allowing appellee said sum of money.
In behalf of appellee, cross-errors have been assigned by her counsel, whereby it is sought to have this court review certain decisions adverse to appellee made by the lower court in the main action.
The record discloses the following facts, which are all that we deem necessary to state, relative to the principal questions involved in this appeal: On May 2, 1893, appellee filed her complaint for a divorce, upon the alleged cause of extreme cruel treatment by appellant. She then made an application to the court under section 1042, R. S. 1881, and section 1054 R. S. 1894, for an order for an allowance of money "to insure her an efficient preparation of her case, and a fair and impartial trial thereof." This application was supported by affidavits showing, among other things, that she was destitute of means to prosecute her action, and to support herself and children during its pendency. It also was made to appear that the appellant was preparing to make a vigorous defense to the action; that he had employed four able and eminent attorneys to manage his said defense, and that appellant would, upon the trial, make an effort to assail the character of appellee for chastity, and that it would be necessary for her to have in attendance at the trial a large number of witnesses. Appellant appeared and resisted this application, and filed counter affidavits.
It was further made to appear, from affidavits filed and considered by the court, that appellant was a man of considerable means, the owner of property, real and personal, ranging in value from $ 13,000 to $ 20,000, and that he was engaged in a prosperous business. Upon the showing made, the court ordered the appellant to pay into court $ 300. The trial of the cause was postponed to the September term of court, at which term, upon the issues being joined in the case, appellee made application for another allowance. In her affidavit filed in support of this application, it was stated that appellant sought and necessitated the continuance of the case over from the April to the September term of the court; that during the vacation she was compelled to resort to legal proceedings and procure an order of court to obtain her clothing held by appellant, and also an order relative to the disposition of the children of said parties, and further, that a large number of witnesses had been subpoenaed in the case, and that she would have to pay her board during the trial, and that she had no means or property of her own. Thereupon the court made an additional allowance of $ 150. Subsequent to this, during the trial, and after the same had been in progress for several days, appellee again applied for an additional allowance. In this application she represented to the court that the money theretofore allowed had been exhausted and the manner in which the same had been expended was set forth therein. Upon this application and showing the court made another allowance of $ 150. The trial began on the 7th day of September, 1893, and continued from day to day until the 22d day of that month. The cause was on that day, after the argument of counsel, finally submitted to the court; and it appears from the entry in the order-book that the court, at the close of the argument, made a finding against appellee, and refused to grant a divorce, and rendered judgment for cost in favor of appellant.
Thereupon appellee, on September 25, 1893, being the 19th judicial day of the September term, moved the court to set aside its judgment, and also filed an application for an additional allowance. The court overruled her motion to set aside the judgment, and she excepted. Appellant then moved the court to strike out appellee's application for an allowance, which was overruled and he excepted.
On the next following judicial day of said term, appellee renewed her motion to have the judgment theretofore rendered set aside, and filed affidavits in support of the said motion, and in support of her claim for an additional allowance.
The court sustained this last motion, and vacated the judgment, and ordered that the cause stand upon the finding for the defendant until the further order of the court, and then proceeded to hear appellee's application for the last additional allowance upon the affidavits and evidence before it, and upon said hearing awarded appellee $ 255.40, and ordered that the same be paid appellee by appellant within ten days, and to be in full for her attorney's fees and expenses. To this order appellant excepted, and moved to set the same aside, which motion was overruled and an exception reserved, appeal was prayed, bond filed, also bills of exceptions bringing into the record the several affidavits and orders of court. After making this last order for the allowance in question, and after the appellee had filed her motion for a new trial, and before any action had been taken thereon, the court rendered judgment upon its finding, denying the prayer of appellee for a divorce, and in favor of appellant for cost. It is the order of the court making this last allowance for $ 255.40 of which appellant complains, and which order he seeks to have reversed in this court. The contentions of the learned counsel for appellant, briefly stated, are that in view of the facts that the court having found that appellee's allegations for a divorce were not sustained, and having rendered a judgment against her, denying the same, in the first instance, it had no power nor right thereafter to make an order for an additional allowance, and that the court erred in setting aside its judgment over appellant's objections, and then hearing the application for the allowance, and in awarding the same to appellee, and in ordering it to be paid. That the court having from time to time during the pendency of the action allowed sums aggregating $ 600, which as he contends were sufficient to insure an efficient preparation and a fair trial, therefore the power of the court, under the first clause of section 1442, supra, had terminated; and by reason of the fact that the wife was the complaining and unsuccessful party in the divorce proceedings, the court was vested with no power to make the allowance under the second clause of this section.
In behalf of appellee, her learned counsel contend and say that they do not claim that the court attempted to exercise any power granted by the second clause of the section last cited that all of the orders for allowances, including the one from which this appeal is prosecuted, were made by the court by virtue of the discretionary power granted to it under and by the first clause of this section. Their contentions are that the court had the right and the power, under the law, to make from time to time during the pendency of the action, upon a proper showing, such allowance of money as would insure an...
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