Kostachek v. Kostachek

• Decision Date: 11 June 1912
• Docket Number: Case Number: 3323
• Citation: 1912 OK 441,124 P. 761,40 Okla. 744
• Parties: KOSTACHEK v. KOSTACHEK.
• Court: Oklahoma Supreme Court

1912 OK 441

124 P. 761

40 Okla. 744

KOSTACHEK v. KOSTACHEK.

Case Number: 3323

Supreme Court of Oklahoma

Decided: June 11, 1912

Syllabus

¶0 DIVORCE--Appeal--Alimony--Counsel Fees. This court, under its appellate jurisdiction, in cases in equity, as an incident to the exercise of such jurisdiction, has authority, in actions pending on appeal in said court to review decrees in divorce proceedings, to grant alimony pending the determination of such appeal, and also the necessary counsel fees and suit money for the prosecution of such proceeding. J. A. Maupin and W. K. Moore, for the motion. Martin, Bush & Murry, opposed.

WILLIAMS, J.

¶1 It appears from the record that the plaintiff in error prosecuted an action for divorce and alimony against the defendant in error in the district court of Tulsa county, resulting in a judgment in favor of the defendant in error. Plaintiff in error, by proceeding in error, in this court seeks a reversal of this decree. After such proceeding in error had been commenced in this court, the plaintiff in error filed a motion praying that the defendant in error be required to pay attorney's fees, alimony, and suit money pending such appeal. Upon said application, which was not resisted by the defendant in error, on January 16th, the order as prayed for was made. The defendant in error now moves to vacate said order: (1) For want of jurisdiction of the subject-matter; (2) for want of notice; and (3) because said order was erroneous. The defendant in error in his brief, however, seems to have abandoned every ground except that of jurisdiction. Section 2 of article 7 of the Constitution is as follows:

"The appellate jurisdiction of the Supreme Court shall be coextensive with the state, and shall extend to all civil cases at law and in equity, and to all criminal cases until a Criminal Court of Appeals with exclusive appellate jurisdiction in criminal cases shall be established by law. The original jurisdiction of the Supreme Court shall extend to a general superintending control over all inferior courts and all commissions and boards created by law. * * *"

¶2 In Hunt v. Hunt, 23 Okla. 490, 100 P. 541, 22 L. R. A. (N. S.) 1202, in an opinion by Mr. Justice Dunn, it is said:

"In our judgment, plaintiff in error ought also to be required to meet the reasonable expenses of defendant in error in this court, including a reasonable attorney's fee. We find that $ 100 would reasonably cover the former, and that $ 150 would be a reasonable allowance for the latter. We therefore adjudge and decree her entitled to $ 250, agreeable to this finding, and direct the same to be taxed as part of the costs in this court."

¶3 This opinion is predicated upon Willits v. Willits, 76 Neb. 228, 107 N.W. 379, 5 L. R. A. (N. S.) 767, 14 Ann. Cas. 883. No statute appears to be in force in this state authorizing this court to make such an allowance. If it has such power, it is incident to its appellate jurisdiction. The authorities seem to be divided on that question. Under the Constitution of 1864, the Supreme Court of Nevada had jurisdiction similar to that of this court (section 4, art. 6, Constitution.) In Lake v. Lake, 16 Nev. 363, the power to allow counsel fees, where no statutory authority existed, was exercised in conformity with the decision of the ecclesiastical courts of England. See, also, to the same effect, Prine v. Prine, 36 Fla. 676, 18 So. 781, 34 L. R. A. 87; Day v. Day, 84 Iowa 221, 50 N.W. 979; Vanduzer v. Vanduzer, 70 Iowa 614, 31 N.W. 956; Van Voorhis v. Van Voorhis, 90 Mich. 276, 51 N.W. 281; Whitmore v. Whitmore, 49 Mich. 417, 13 N.W. 800; Zeigenfuss v. Zeigenfuss, 21 Mich. 414; Chaffee v. Chaffee, 14 Mich. 463; Goldsmith v. Goldsmith, 6 Mich. 285; Wagner v. Wagner, 36 Minn. 239, 30 N.W. 766; Dwyer v. Dwyer, 16 Mo. App. 422; Miller v. Miller, 14 Mo. App. 418; Disborough v. Disborough, 51 N.J. Eq. 306, 28 A. 3; Nary v. Braley, 41 Vt. 180; Phillips v. Phillips, 27 Wis. 252; Helden v. Helden, 9 Wis. 557. Contra: State ex rel. Clarkson v. St. Louis Court of Appeals, 88 Mo. 135; Hunter v. Hunter, 100 Ill. 477; Ex parte Ambrose, 72 Cal. 398, 14 P. 33; Reilly v. Reilly, 60 Cal. 624; Cralle v....