Maxwell v. Maxwell.
| Decision Date | 01 March 1910 |
| Citation | 67 W.Va. 119 |
| Court | West Virginia Supreme Court |
| Parties | Maxwell v. Maxwell. |
Divorce Suit Money and Maintenance Pending Appeal Jurisdiction of Circuit Court at Any Time Pending the Suit Appellate Jurisdiction.
The circuit court has jurisdiction, to award suit money and maintenance necessitated by the pendency of an appeal of a divorce suit. The power to make such an award does not lie in the appellate court.
Appeal from Circuit Court, Ohio County. Suit by Emma Y. Maxwell against A. 0. Maxwell. Decree for plaintiff, and defendant appeals.
Affirmed.
John J. Coniff and Henry M. Russell, for appellant. T. S. Riley and A. L. Sawtell, for appellee.
Robinson, President:
In the circuit court of Ohio county, Emma V. Maxwell sought a decree of divorce from her husband, A. 0. Maxwell. Upon a hearing of the cause, the relief asked by her was denied and the suit dismissed. She obtained and perfected an appeal from the decree of dismissal. Thereafter she petitioned the circuit court for an order compelling the husband to pay her an amount of money sufficient to enable her to prosecute that appeal and to maintain her during its pendency. The petition was received and filed, and notice to the defendant of a hearing thereon was directed to be given. The defendant appeared and answered the petition. The answer denied the jurisdiction of the circuit court to make the order for which the petitioner prayed. But upon a hearing of the issue made by the petition and answer it was decreed From this decree the defendant, A. 0. Maxwell, has appealed.
The question presented is that of the jurisdiction of the circuit court to award, because of the pendency of an appeal, suit money and maintenance after the appeal has been taken. Concurrently there arises the question of the power of this Court to make such an award in a case here on appeal.
Has the circuit court such power as it exercised? Does the power lie in the appellate court? It is insisted that the circuit court can make no order for suit money and maintenance after an appeal of the suit is perfected; that the order can then be made only by the Supreme Court of Appeals, wherein the appeal is pending. These questions are of first instance with us. Yet they are of vital importance. It behooves us to start right. In other states we find decisions in point. But they are at great variance many holding one way and many the other. Some are poorly considered; others seemingly controlled by constitutions and statutes different from ours. Perhaps we could truthfully say that the greater number of them justify the conclusion that we shall announce in this opinion. The decisions of New York, Maryland, and California, and the latest decisions in Missouri, are clearly in accord with it. So are many others. But no opinion should be controlled by the number of precedents found in other jurisdictions. Nor should those precedents be persuasive unless founded upon sound reason. We shall give them only such weight as their good sense discloses.
A late exposition of the decisions on the subject under consideration is that in the helpful note in 3 Amer. & Eng. Ann. Cases, at page 51. Our extended exar the cases, in that note and elsewhere cited, leads us there may be drawn as a general deduction from them, regard to its applicability in all jurisdictions, the text in 1 Bnd,: PL & Pr. 449, which is: "Temporary alimony and counsel fees may be granted by the appellate court pending an appeal, but the usual practice is that this shall be done by the trial court, which is deemed still to have sufficient jurisdiction for this purpose as long as the action is pending, i.e., while the appeal is unde termined." This text, however, read in the light of the two lines of cases cited to support it, one line in relation to its first proposition and the other, a directly opposite line, in relation to its last proposition, can mean only that in some states the appellate court may grant temporary alimony and counsel fees pending an appeal of the divorce case, but that the decisions of other jurisdictions are to the contrary and are so numerous that the usual practice is to grant this power to the trial court even pending an appeal. The first proposition of this text, though stated as a general one, is not generally true. The cases cited in the book itself as supporting the latter proposition denounce the first. And so it is too often in texts. On this same subject, in Nelson on Marriage and Divorce, at section 863, we find the author simply stating conclusions from cases as general propositions of law, in this way giving his name and sanction to them, though they are not the law in many states because considered unsound or inconsistent with constitutions and statutes. The early text-books were not so written. To a great extent they contained original thought, based on reason not cases. Yet some of the courts, we observe, have justified decisions upon the question, by the text of this author. Why do that when the law stated in that text is not generally the law? Why not look at the other side of the question, sup ported as it is by authority of courts equally as profound as those cited in the text-book? Why not appeal to reason, which is the life of the law, rather than to an author who simply adopts a line of cases and ignores well considered, cases to the con trary, without even a discussion of the weight of the subject? We refuse to follow any text or case unless it is sound and suited to our jurisprudence.
The Supreme Court of Appeals has original jurisdiction only in cases of habeas corpus, mandamus, and prohibition. In all other matters, its jurisdiction is appellate. Constitution, Art. VIII, section 3. Certain it is that an award of suit money and maintenance does not pertain to habeas corpus, mandamus, or prohibition. Then snch award cannot be made in this Court by the exercise of the limited original jurisdiction granted by the Constitution. If it can be made here at all, it must be by the exercise of the appellate jurisdiction of this Court. But what is appellate jurisdiction? Does it include the power to do other than to review upon the record made below? Does it not relate wholly to the consideration of that which has been acted upon by the court from whence comes the appeal? May this Court do an original thing, act upon something that has never been heard in the court below, and call that the exercise of appellate jurisdiction? We do not think so. It is not in reason so to hold. Only in habeas corpus, mandamus, and prohibition can we act originally. In all other cases, we must act upon that which has once before received consideration by a court. Our powers are made by the Constitution itself. It has not granted this Court power to make an original order in a divorce case. In such case it can act only in review of an order made below exercise appellate jurisdiction. Whenever this Court proceeds to act upon a cause, or some branch of a cause, that involves an issue made for the first time here, it begins to act originally. It begins to create a cause, not to review one. It begins to exercise original and not appellate jurisdiction. "Appellate jurisdiction is the authority of a superior tribunal to review, reverse, correct, or affirm the decisions of an inferior judicial tribunal in cases where such decisions are brought before the superior court pursuant to law." Elliott on App. Pro., section 16. Its essential criterion is, says Justice Story, "that it revises and corrects the proceedings in a cause already instituted, and does not create that cause." 2 Story Const., section 1761. What reviewing, reversing, correcting, or affirming is demanded upon a petition for suit money and maintenance presented for the first time in this Court? Nothing has yet been done to be so acted upon. The reception of a petition of that kind creates a new issue. It makes a new cause—one for original hearing and not for review. True, the procedure is collateral to a suit pending on appeal, but it independently involves the making of an original order and not the review of one already made. There fore it calls for the employment of original and not appellate jurisdiction.
Will it be insisted that this Court can entertain an original issue upon the question of an award of suit money and maintenance, hear evidence, and originally decide thereon? If the application can be made here originally, we must entertain a resistance thereto, hear evidence, and. decide an entirely new case a case created and made up wholly in this Court. Again we say, no such power is vested here except in cases of habeas corpus, mandamus, and prohibition. Yet we must open the door of this Court for original evidence, if we open it for original application. But this Court cannot hear evidence other than that brought up for review, except in the exercise of original jurisdiction. That is the command of the law-makers. "The Supreme Court of Appeals shall not hear parol testimony except in cases in which it has original jurisdiction." Code 1906, chapter 135, section 25. That mandate means that, as to cases here on appeal, we shall deal only with evidence taken below and brought up for the purpose of a review of an order or decree made upon it below. It means that in using our appellate powers we shall consider no other evidence, and shall consider it for no other purpose. Now can we properly determine the right to suit money and maintenance, based on the pendancy of an appeal, and the amount to be allowed, other than by original evidence? Shall we look to the evidence brought up for review? Even if the evidence brought up by the...
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