Duxstad v. Duxstad

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: SCOTT, JUSTICE.
• Citation: 16 Wyo. 396,94 P. 463
• Decision Date: 21 March 1908
• Parties: DUXSTAD v. DUXSTAD

94 P. 463

16 Wyo. 396

DUXSTAD
v.
DUXSTAD

Supreme Court of Wyoming

March 21, 1908

ERROR to District Court, Laramie County, HON. RODERICK N. MATSON, Judge.

Action for divorce brought by Anna Duxstad against Louis Duxstad. Heard on application of plaintiff in error for an allowance to enable her to further prosecute the proceeding in error, and for the support of herself and child during the pendency thereof.

M. A. Kline, for plaintiff in error. (Sullivan & Squires upon the brief.)

Within the meaning of the statute (R. S. 1899, Sec. 2995) authorizing an allowance in favor of the wife in a divorce case for expenses and support during the pendency of the action, the action is to be deemed pending until its final determination on appeal or error, or until the time for prosecuting appeal or error shall expire. (Brasch v. Brasch, 50 Neb. 73; McBride v. McBride (N. Y.), 23 N.E. 1065; Bohnert v. Bohnert, 91 Cal. 431; 7 Curr. L., 106; 2 Bish. M. & D., 393.)

The weight of authority is in favor of the right of the appellate court to make the allowance upon an appeal or proceeding in error. (14 Cyc., 745; Prine v. Prine, 36 Fla. 676; Hall v. Hall, 77 Miss. 741; Disborough v. Disborough, 51 N.J. Eq. 306; Pleyte v. Pleyte, 15 Colo. 125; Goldsmith v. Goldsmith, 6 Mich. 286; Pollock v. Pollock, 7 S.D. 332; Wagner v. Wagner, 36 Minn. 239; Clarkson v. Clarkson, 20 Mo.App. 94; Weishaupt v. Weishaupt, 27 Wis. 625; Chaffee v. Chaffee, 14 Mich. 464; Van Duzer v. Van Duzer, 70 Iowa 621; Willits v. Willits (Neb.), 107 N.W. 379; Van Vorhis v. Van Vorhis, 90 Mich. 276; Pauly v. Pauly, 69 Wis. 425; Day v. Day, 84 Iowa 227; Lake v. Lake, 16 Nev. 363; Lake v. Lake, 17 Nev. 230; 2 Nelson Div. and Sep., 821.)

The following cases also recognize the right of the wife to suit money pending an appeal, but it seems to have been the practice in those jurisdictions to make the application to the trial court: Holleman v. Holleman, 69 Ga. 676; Bohnert v. Bohnert (Cal.), 27 P. 732; McNeil v. McNeil, 19 Pa. Co. Ct., 94; Larkin v. Larkin (Cal.), 12 P. 226; Rohrback v. Rohrback, 75 Md. 317; Earle v. Earle, 75 Ill.App. 352; Haddock v. Haddock, 75 A.D. 565.

It is held, however, that such relief in an appellate court is not a matter of course, but can be granted only upon proof made in such court, showing the necessities of the wife and also the financial ability of the husband, and a further showing that the appeal is taken in good faith. (Prine v. Prine, supra; Wagner v. Wagner, supra; Zeigenfuss v. Zeigenfuss, 21 Mich. 415.)

There can be no dispute in regard to the necessities of plaintiff in error. That is proven beyond any doubt by the affidavits filed herein, and by the testimony adduced on the trial of the cause in the lower court. It having been shown that the defendant in error is able to pay the costs and that the plaintiff in error is unable to do so, and that unless the motion be granted she will be unable to properly present her side of the question, and it having been shown further that this appeal is taken in good faith, and that the majority of the courts of last resort to whom a similar motion has been presented have held that they have authority to grant a similar motion upon a proper showing, the question arises whether there are any provisions in the constitution of this state different from the provisions in the constitutions of those states in which the appellate courts have exercised such jurisdiction, that will preclude this court from making the order asked for. It will be noticed that the constitution of this state confers a broader authority upon this court in this connection than the constitutions of the other states. The case of Lake v. Lake, 17 Nev. 230 (30 P. 881), contains a full and conclusive discussion of the question, and upon the reasoning of that case this court clearly has jurisdiction in the premises.

Clark, Riner & Clark, for defendant in error.

Upon this motion the court is asked substantially to sit as a nisi prius tribunal. The functions of this court are appellate in character, except in certain specified cases. (Const., Art. V, Secs. 2, 3.) No power is vested to hear evidence and make an order such as here asked for, and the weight of authority is to that effect under similar constitutional provisions. The power to grant alimony and suit money rests alone with the trial court where the suit is brought. (R. S. 1899, Sec. 2995.) The following cases, based upon constitutional provisions as broad as those in this state, deny the jurisdiction of the appellate court to entertain such a motion. (Reilly v. Reilly, 60 Cal. 624; Hunter v. Hunter, 100 Ill. 477; Kesler v. Kesler, 39 Ind. 153; State ex rel. v. Court, 88 Mo. 135; Muir v. Muir (Ky.), 87 S.W. 1070.)

It is to be observed that the matter of the allowance now sought has not been presented to the trial court. The jurisdiction here asserted is original, therefore, and not appellate. The cases holding that the appellate court has jurisdiction were controlled by constitutional provisions so different that, with two exceptions, they are not in point here. And the reasoning in the cases that may be regarded as in point is illogical.

This court already has complete control of the case for the exercise of its appellate jurisdiction, and an allowance to the wife cannot further assist in the exercise of such jurisdiction. This question seems to have been substantially passed upon adversely to the contention of plaintiff in...