Hertel v. Edwards

• Decision Date: 21 December 1923
• Parties: HERTEL v. EDWARDS, CIRCUIT JUDGE.
• Court: Kentucky Court of Appeals

257 S.W. 36

201 Ky. 456

HERTEL v. EDWARDS, CIRCUIT JUDGE.

Court of Appeals of Kentucky.

December 21, 1923

Rehearing Denied Jan. 25, 1924.

Original proceeding in prohibition by Louis Hertel against Davis W Edwards, Judge of the First Chancery Division of the Jefferson Circuit Court. Writ granted.

L. A Hickman, Hickman & Withers, and Samuel G. Tate, all of Louisville, for plaintiff.

Selligman & Selligman, of Louisville, for defendant.

THOMAS J.

This is an original action filed in this court by plaintiff (petitioner), Louis Hertel, against defendant, Davis W Edwards, Judge of the First Chancery Division of the Jefferson Circuit Court, whereby petitioner seeks an order fro this court prohibiting defendant from, in any manner enforcing an order made by him on December 4, 1923, in the case of Hertel v. Hertel, theretofore pending in his court.

That case was a divorce proceeding instituted by petitioner against his wife, Barbara Hertel, in the Jefferson Circuit Court and it was allotted to defendant for trial. On July 20, 1923, he entered a final judgment therein, whereby he dismissed plaintiff's petition, but granted his wife a divorce on her counterclaim, and gave her a judgment against her husband for $7,500 permanent alimony and allowed her attorneys a fee of $1,000, to be taxed against the plaintiff as cost. The judgment also adjusted the property rights of the parties by ordering restorations as required by the statute, and directed that plaintiff, petitioner herein, pay to his wife the sum of $85 per month as temporary alimony until he performed the judgment of the court. On the 14th day of August following the entry of that judgment, petitioner superseded it, and on the same day served a copy thereon upon his wife, and immediately proceeded to prepare the record for appeal to this court, and filed it in the clerk's office on November 26, 1923. The order made by defendant on December 4th thereafter, complaint of which is made in this case, made an allowance to the wife of $85 per month as alimony "pending the appeal," and directs its payment by petitioner or C. R. Boswell, who had theretofore, and before the submission of the cause, been appointed receiver in the case.

The questions presented for determination are: (1) Has this court jurisdiction to make such an allowance after the appeal has been perfected by filing a transcript of the record in the regular way with the clerk of the Court of Appeals; and, if so (2) has the trial court concurrent jurisdiction of a similar motion after that time? The question of the jurisdiction of the appellate court to entertain such a motion under the circumstances is quite generally conceded (though there are some few cases denying it), as will be seen from section 643, p. 281, 19 Corpus Juris; Mosher v. Mosher, 16 N.D. 269, 113 N.W. 99, 12 L.R.A. (N. S.) 820, 125 Am.St.Rep. 654; annotations to the case of Maxwell v. Maxwell, 67 W.Va. 119, 67 S.E. 379, in 27 L.R.A. (N. S.) 712; Taylor v. Taylor, 19 N.M. 383, 142 P. 1129, L.R.A. 1915A, 1044; Robinson v. Robinson, 86 N. J. 165, 92 A. 94, L.R.A. 1915B, 1071; Prine v. Prine, 36 Fla. 676, 18 So. 781, 34 L.R.A. 87; Elzas v. Elzas, 183 Ill. 160, 55 N.E. 669; Chaffee v. Chaffee, 14 Mich. 463; Vanduzer v. Vanduzer, 70 Iowa 614, 31 N.W. 956; Lake v. Lake, 17 Nev. 230, 30 P. 878; Krause v. Krause, 23 Wis. 354; Cralle v. Cralle, 81 Va. 773, and Wagner v. Wagner, 36 Minn. 239, 30 N.W. 766. Many other cases upholding the jurisdiction of the appellate court to make such an allowance under the same conditions will be found in the notes to Corpus Juris, supra, as well as in the opinions referred to.

The Maxwell Case, from West Virginia, held to the contrary, and there are a few other courts which coincide with that opinion, although there was a strong dissenting opinion in that case. The majority opinion therein denied the jurisdiction upon the ground that the court possessed appellate jurisdiction only, except in certain cases of original jurisdiction conferred by the Constitution of the state, and that to entertain such a motion would be assuming original jurisdiction where it was not conferred. The other courts taking a similar view adopt the same reasoning, while the great majority of them holding to the contrary do so upon the ground that the power to make such an allowance, after the perfection of the appeal, is an implied one, and incidental to the appellate jurisdiction, and is not the exercise of original jurisdiction; and such was the holding of this court in the cases of Napier v. Napier, 186 Ky. 558, 217 S.W. 683, Kreiger v. Kreiger, 194 Ky. 812, 241 S.W. 828, and Heskamp v. Heskamp, 195 Ky. 618, 242 S.W. 857. Our statute (section 2121) says that "pending an action for any divorce the court may allow the wife maintenance"; and section 424 of the Civil Code of Practice says:

"During the pendency of an action for divorce or alimony, the court may allow the wife maintenance, and enforce the payment thereof by orders and executions and proceedings as in cases of contempt."

We held in the case of Pemberton v. Pemberton, 169 Ky. 476 184 S.W. 378, that the trial court under the statute, and the section of the Code, supra, "is empowered to grant the wife maintenance during the pendency of an action for divorce and alimony." In that case the complained-of order of allowance during the appeal was made by the trial court after rendering the judgment for permanent alimony (but whether before or after superseding the judgment is not shown), and before the appeal was perfected by filing a transcript in this court. Hence the question as to whether the trial court could make such an allowance after the judgment was superseded and the appeal perfected was not before the court, and the statement therein that "an action is pending whether in the circuit court or here on appeal" could not...