McCue v. McCue

• Decision Date: 16 February 1898
• Docket Number: 18,411
• Parties: McCue v. McCue
• Court: Indiana Supreme Court

49 N.E. 382

149 Ind. 466

McCue v. McCue

No. 18,411

Supreme Court of Indiana

February 16, 1898

From the Johnson Circuit Court.

Affirmed.

David L. Wilson, Will A. Yarling, R. M. Miller and H. C. Barnett for appellant.

William A. Johnson, for appellee.

OPINION

Monks, J.

Appellee sued appellant for a divorce. On application of appellee the court ordered that "appellant pay the clerk of the court below $ 100.00, within fifteen days, for her use and support during the pendency of the case." From this interlocutory order appellant appealed.

In this State the court has the power, in divorce cases, to make such allowances and orders as may be deemed necessary to enable the wife to prepare for and secure a fair and impartial trial, and also for her support during the pendency of such action. Sellers v. Sellers, 141 Ind. 305, 40 N.E. 699. Such orders are within the discretion of the trial court and will not be reversed unless there has been a clear abuse of such discretion. Sellers v Sellers supra, p. 307, and cases cited; Gruhl v. Gruhl, 123 Ind. 86, 23 N.E. 1101.

The evidence given on behalf of appellee was that she had been compelled, by appellant's cruel and inhuman treatment, and his failure to make any provision whatever for her support, to leave him; that she was wholly destitute, and owned no property whatever except a small house of the value of $ 400.00 and no more, and $ 10.00 balance on some property, not yet due; that from said house and lot she derived an income of only $ 5.00 per month, that being but little more than enough to keep up the repairs and pay the taxes thereon; and that she could not sell, mortgage, or borrow any money on the same, or otherwise get any money, and that she had no other property or credit, and could not live on the income thereof, and, aside therefrom, is wholly destitute of the means to support herself during the pendency of the action, or of defraying the costs, expenses, and attorney's fees attending the preparation of said cause; that she is fifty-four years of age and is afflicted with rheumatism, and wholly unable to work or labor; that appellant owned personal property of the value of $ 2,000.00, and unincumbered real estate of the value of $ 7,500.00, and was amply able to pay such sum as would be necessary for appellee's support during the litigation and in preparation for the trial of said cause. The evidence given on behalf of appellee was amply sufficient to sustain the action of the court in making the interlocutory order appealed from. Sellers v. Sellers, supra, and cases cited; Davis v. Davis, 141 Ind. 367, 40 N.E. 803; Yost v. Yost, 141 Ind. 584, 41 N.E. 11; Gruhl v. Gruhl, supra.

After appellee's application for an allowance was filed appellant resisted the same, and on February 22, 1897, filed an affidavit, in which he alleged that he had a furnished house, the family residence, the one said appellee had abandoned, and that he was willing for her to return to said home, and that he would furnish her with comfortable maintenance and support; that appellee's house and lot could easily be mortgaged for the sum of $ 400.00, and that appellant was willing to join with her at any time in a mortgage on said property for any sum she might desire, and that appellant would within twenty-four hours furnish a party who would loan appellee, on reasonable terms, $ 400.00, secured by a mortgage...