Drennan v. Drennan, 23079.
| Decision Date | 04 May 1937 |
| Docket Number | No. 23079.,23079. |
| Citation | 104 S.W.2d 691 |
| Parties | DRENNAN v. DRENNAN. |
| Court | Missouri Court of Appeals |
Appeal from Court of Common Pleas, Cape Girardeau County; L. L. Bowman, Judge.
"Not to be published in State Reports."
Suit for divorce by Mae Drennan against Russell Drennan. From a judgment allowing the plaintiff alimony pending appeal, but prior to application for appeal or to granting of an appeal, the defendant appeals.
Reversed.
J. Grant Frye, of Cape Girardeau, for appellant.
Frank A. Lowry, of Cape Girardeau, for respondent.
Mae Drennan, plaintiff below, filed suit for divorce against her husband, Russell Drennan. The case was heard on August 5, 1935, and a decree of divorce denied plaintiff. The following day she filed her motions in arrest of judgment and for new trial, each of which was overruled. The following day, August 10, 1935, plaintiff, without having filed an affidavit for, or being allowed an appeal, filed a motion for suit money, attorney's fees, and alimony pendente lite "pending the final adjudication of this matter on appeal from the order and judgment of this court," which motion, on August 30, 1935, was heard and taken under advisement. Thereafter, on September 6, 1935, the court sustained the motion and allowed plaintiff wife the sum of $10 per month during the pendency of the appeal, together with $180 for necessary expenses and attorney's fees, and that the defendant be "required to give security for same as required by law on or before the 15th day of October, 1935, and that execution issue therefor." The record discloses, however, that the plaintiff wife did not take an appeal in the cause until October 25, 1935.
The defendant filed a motion for new trial on plaintiff's motion for alimony pendente lite, etc., on September 7, 1935, which motion was overruled on October 25, 1935, and defendant appeals. It is this appeal from the alimony pending appeal judgment that we have before us for consideration at this time.
The sole point assigned here as error is that the trial court was without jurisdiction to make an order granting plaintiff below alimony pendente lite, suit money, and attorney's fees pending an appeal, prior to the time that an application for appeal had been made, or an appeal granted.
The point is well taken, for while section 1355, Rev.St. of Mo.1929 (Mo.St. Ann. § 1355, p. 1564) relating to alimony and maintenance, among other things, provides that the "court may decree alimony pending the suit for divorce in all cases...
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