Enders v. Enders

• Decision Date: 24 October 1921
• Parties: THEO. ENDERS, Respondent, v. RUTH ENDERS, Appellant
• Court: Idaho Supreme Court

201 P. 714

34 Idaho 381

THEO. ENDERS, Respondent, v. RUTH ENDERS, Appellant

Supreme Court of Idaho

October 24, 1921

DIVORCE-APPLICATION FOR ATTORNEY FEES IN APPELLATE COURT-APPELLATE JURISDICTION.

1. Under art. 5, sec. 9, of the constitution of this state, the supreme court has jurisdiction to entertain an original application for attorney fees on behalf of one of the parties to a divorce action, upon a proper showing that the granting of such relief is necessary to the exercise of its appellate jurisdiction.

2. Where an action for divorce is brought by the husband, the wife is entitled to be provided with means at the expense of the husband for an efficient preparation of her case on appeal, where it appears that she is without means, and that all the property of the parties was awarded to the husband by the decree of the lower court.

3. In an action for divorce, considerations of justice and public policy require that the wife be afforded an opportunity to be properly represented by counsel before her property and other rights are adjudicated by the appellate court.

4. Under C. S., secs. 4642 and 4653, original jurisdiction in the matter of granting alimony and suit money in divorce actions is vested in the district court, and such relief is granted by the appellate court only where it is necessary to a complete exercise of its appellate jurisdiction.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. O. R. Baum, Judge.

Action for divorce. Defendant appeals from decree awarding property to plaintiff. Defendant's application for attorney fees on appeal, granted in part. Application for temporary alimony, denied.

Application for temporary alimony denied.

Peterson & Coffin and H. E. Ray, for Appellant, cite no authorities.

D. W Standrod, C. M. Booth, C. D. Smith and Jas. B. Bacon, for Respondent.

"The trial judge is in a better position than this court to know the amount of money necessary for the payment of costs and disbursements in the prosecution of an appeal and the ability of the husband to meet such requirements." (Roby v Roby, 9 Idaho 371, 3 Ann. Cas. 50, 74 P. 957.)

BUDGE J. Rice, C. J., and McCarthy, Dunn and Lee, JJ., concur.

OPINION

BUDGE, J.

This is an original application in this court for an order directing respondent to pay a certain sum of money to appellant for attorney fees in the prosecution of her appeal, and for temporary alimony.

An application for the payment of costs, expenses and attorney fees was made to the trial judge, whereupon an order was made directing that respondent pay the clerk of the court an amount necessary to cover the transcript on appeal, the filing fee in the supreme court, and the sum of $ 30 to cover the cost of printing briefs, but denying the application for attorney fees.

A motion has been made by respondent to dismiss appellant's application in this court upon the ground that no appeal was taken from the order made by the district judge, disallowing the attorney fees, and that, therefore, this court is without jurisdiction to entertain appellant's application. With this contention we are not in accord.

Art. 5, sec. 9, of the constitution provides that: "The supreme court shall . . . . have . . . . jurisdiction to issue . . . . all writs necessary or proper to the complete exercise of its appellate jurisdiction." (Roby v. Roby, 9 Idaho 371, 3 Ann. Cas. 50, 74 P. 957; Stoneburner v. Stoneburner, 11 Idaho 603, 83 P. 938; Day v. Day, 12 Idaho 556, 10 Ann. Cas. 260, 86 P. 531; Spofford v. Spofford, 18 Idaho 115, 108 P. 1054; Callahan v. Dunn, 30 Idaho 225, 164 P. 356; Callahan v. Callahan, 33 Idaho 241, 192 P. 660; 14 Cyc. 745.)

As will be observed from the foregoing authorities, this court has jurisdiction to entertain appellant's application upon a proper showing that the granting of such relief is necessary to a complete exercise of its appellate jurisdiction. (Callahan v. Dunn, 30 Idaho 225, at 231, 164 P. 356.)

From the record on appeal in this case it appears that respondent's complaint was dismissed and a decree of divorce granted to appellant upon her cross-complaint, and that all of the property owned or possessed by appellant and respondent was awarded to the latter. Whether this property is the separate property of respondent or community property is a question to be determined when the cause is submitted upon the merits.

Appellant's application is supported by the affidavit of one of her attorneys, who, upon information and belief, alleges that appellant is now, and since the rendition of the decree of divorce has been, compelled to seek aid from friends and relatives for her support; that she is...