Disborough v. Disborough

• Decision Date: 11 December 1893
• Citation: 28 A. 3,51 N.J.E. 306
• Parties: DISBOROUGH v. DISBOROUGH.
• Court: New Jersey Supreme Court

28 A. 3

51 N.J.E. 306

DISBOROUGH

v. DISBOROUGH.

Court of Errors and Appeals of New Jersey.

Dec. 11, 1893.

(Syllabus by the Court.)

Bill by Julia C. Disborough against Isaiah Disborough for divorce. From a decree dismissing the bill, (26 Atl. 852,) complainant appealed. Complainant now moves for an allowance of alimony. Granted.

Mark Sooy, for the motion.

George M. Robeson, opposed.

GARRISON, J. Julia C. Disborough filled her bill against Isaiah Disborough for divorce a mensa et thoro upon the ground of the defendant's extreme cruelty. The most substantial allegation was that the defendant accused the complainant of administering poison to him, and caused her arrest therefor. The learned vice chancellor who heard the testimony reached the conclusion that the husband had reasonable ground for believing the truth of his accusation, and hence that the arrest was not an act of violence amounting to extreme cruelty. 26 Atl. 852. A decree was advised dismissing the complainant's bill. From this decree the complainant has appealed, and now applies to this court for an order directing the payment to her of alimony, and a counsel fee, and for the printing of the case to be used upon appeal, and that she be relieved from making the deposit required by the rules of this court. This motion is resisted by the defendant.

Upon the filing of her bill in the court of chancery the complainant was allowed a counsel fee of $50, and alimony at the rate of $5 per week. 20 Atl. 960. Upon appeal this court affirmed this order, (48 N.J.Eq. 640, 25 Atl. 20,) and in so doing passed upon the defendant's capacity, and the necessity of such payments. It is not suggested that any change has occurred affecting the matters thus adjudicated; the question raised now being the propriety of granting the motion in the face of the decree of the chancellor dismissing the complainant's bill. This contention is without force. In a recent unreported case (Stickle v. Stickle)¹ we allowed a similar motion upon the application of a wife against whom in the court below a decree of divorce had been pronounced upon the ground of her adultery. Where an appeal is taken in good faith by a wife, whether she was complainant or defendant below, the expense must be borne by the husband when it appears that the appellant is otherwise without the means to prosecute her appeal.

The defendant is ordered to pay to his wife a counsel fee of $100, and alimony at the rate of $5 per week, commencing from...