Franklin v. Franklin

• Decision Date: 12 April 1915
• Court: Mississippi Supreme Court
• Parties: FRANKLIN v. FRANKLIN

68 So. 74

109 Miss. 163

FRANKLIN v. FRANKLIN

Supreme Court of Mississippi

April 12, 1915

March 1915

APPEAL from the chancery court of Hinds county. HON. O. B. TAYLOR Chancellor.

Suit for divorce by Stella Franklin against Ed. Franklin, with cross-bill by defendant. Decree granting divorce to both parties and decreeing a house and lot and certain personal property to plaintiff as alimony, and taxing defendant with cost of suit, and he appeals. Plaintiff's petition for allowance of alimony pending the appeal and for counsel fees in supreme court granted.

The facts are fully stated in the opinion of the court.

Affirmed.

W. J Croom, for appellant.

When this bill was first filed, the court ordered appellant to pay alimony of five dollars per month until the case should be finally heard in the chancery court, and also a solicitor's fee for her solicitor, which he has paid being over twelve months at five dollars per month and a solicitor's fee of twenty-five dollars to appellee's solicitors. So the court will see that this appellant has been burdened enough, and more than enough, already and the law will not put a premium of a woman living in adultery after it has been proven to be true, by making her husband support her and her criminal consort, or bedfellow, while she is engaged in this conduct, and leading this life. It would be a travesty upon the law and justice to permit same, let alone order and allow same. This court has held, in the case of Holmes v. Holmes, 474, as follows: "Proof of adultery on the part of the wife is a bar to her claim for alimony."

Solicitors for appellee are mistaken when they say in their brief on this petition that "the weight of authority is in favor of this court allowing alimony in a case of this kind on appeal," and they are very much mistaken when they say that the case of Hall v. Hall, 77 Miss. 741, and 27 So. 636, holds that this court should allow temporary alimony and solicitors' fees on appeal in a case of this kind, for that case simply said, "that a chancellor's decree, or rather the interlocutory order, allowing temporary alimony, which was appealed from, should be sustained;" and even in that case, the court only sustained the allowance of the solicitor's fee. So that I say, that we do not question the right and the power of the allowance of the temporary alimony and solicitor's fee in the chancery court, while the case is pending there, and up to the time that the final decree is rendered, but I say that it should end there, and this is not an appeal from an order of the chancellor, or chancery court, allowing this alimony, and therefore this court has no jurisdiction to allow it. Even in the Hall Case, cited by opposing counsel, this court refused to allow the woman temporary alimony for support.

Howie & Howie, for appellee.

It seems that it is sufficient, for the granting of the relief asked, that the court below granted the appellee alimony during the pendency of the suit and also attorneys' fees for the trial in that court and then on final hearing set aside a part of the property of the defendant as alimony for appellee. It not only decided that she could not maintain herself and pay her attorneys while the suit was pending but that she was entitled to permanent alimony. This court has the authority to do this and it is the custom of the court to grant the relief asked for in this petition.

"The authorities differ as to the power of an appellate court to grant an order directing the payment of temporary alimony and suit money upon an appeal in a divorce action. . . . The weight of the authorities are in favor of an exercise of the power." 14 Cyc. , page 745.

"Temporary alimony should be allowed the wife pending an appeal where it is shown that the appeal is taken in good faith and that the allowance is necessary, either by the court below or the appellate court, according to the practice of the particular jurisdiction. It has been held that in the discretion of the court temporary alimony continues until the termination of the litigation, including an appeal from the judgment...