Friend v. Friend

• Decision Date: 23 February 1886
• Citation: 27 N.W. 34,65 Wis. 412
• Parties: FRIEND v. FRIEND.
• Court: Wisconsin Supreme Court

65 Wis. 412

27 N.W. 34

FRIEND

v.FRIEND.

Supreme Court of Wisconsin.

Filed February 23, 1886.

Appeal from circuit court, Eau Claire county.

Opinion on motion for suit money and alimony.

A. Meggett, for appellant.

L. Vilas, for respondent.

COLE, C. J.

This is an application for suit money and temporary alimony for the support of the appellant and her child pending an appeal in this court. The appeal is from an order of the circuit court which vacates and sets aside an order of a court commissioner granting alimony and suit money pendente lite. The application in this court is made upon the record constituting the return in the appeal cause, and upon affidavits annexed to the motion. It is not the practice of this court to grant such allowances as a matter of course. The rule upon which the court acts is well stated by Chief Justice DIXON in Krause v. Krause, 23 Wis. 354, substantially as follows: The granting of temporary alimony and suit money, to enable a wife to prosecute her appeal, is not a matter of course in this court; and when application is made we think we must look into the record so far as to determine whether the appeal is obviously without merit, and if it is then the motion will be denied. Injury and a meritorious cause of action must appear. This rule was recognized, and in effect acted upon, in Phillips v. Phillips, 27 Wis. 252;Weishaupt v. Weishaupt, Id. 625; Freeman v. Freeman, 31 Wis. 235; and Varney v. Varney, 54 Wis. 422;S. C. 11 N. W. Rep. 694.

It becomes our duty, then, in deciding this motion, to examine the record on the appeal, and to ascertain whether a meritorious cause of action exists. It is true, this is the question which is necessarily involved in the appeal itself; but it would be manifestly improper to grant any allowance if, on looking into the return, no good cause of action is stated. It appears from the record that the appellant now asks for a divorce from the bond of matrimony on the ground that her husband, being of sufficient ability, refuses or neglects to provide for her support and the support of their child. It further appears that she voluntarily abandoned him in the summer of 1883, and refuses to live with him. In March, 1884, she commenced a suit for divorce, charging that, on account of his cruel and inhuman treatment, without her fault, she was compelled, in July, 1883, to leave his bed and board, and has not since lived with him. The defendant put in an answer to that complaint denying all its material allegations. The cause was brought to a hearing on its merits, and in January, 1885, the circuit court gave...