Pleyte v. Pleyte

• Citation: 25 P. 25,15 Colo. 125
• Parties: PLEYTE v. PLEYTE.
• Decision Date: 07 November 1890
• Court: Supreme Court of Colorado

25 P. 25

15 Colo. 125

PLEYTE v. PLEYTE.

Supreme Court of Colorado

November 7, 1890

Error to district court, Arapahoe county.

On motion to dismiss petition for alimony and suit money.

Syllabus by the Court

When the wife is involved in a suit against her husband for divorce, either as plaintiff or defendant, she should be allowed alimony and suit money out of the husband's estate or earnings, so as to place her upon an equality with him in the litigation until the same is finally determined and these allowances may be extended to the pendency of the cause on appeal or error, whenever it is made to appear to the appellate court that the review is prosecuted in good faith, and that error has probably been committed to her prejudice. Such relief, however, will not be granted, except upon a showing that the wife is destitute, in whole or in part, of the means necessary to maintain herself and carry on the litigation and that the husband is able to supply the same.

Sullivan & May and Coe & Freeman, for plaintiff in error.

Patterson & Thomas, for defendant in error.

ELLJOTT J.

The plaintiff in error, having been defeated in her action for divorce in the court below, brings the record to this court by writ of error, and asks, upon petition and affiavits, that defendant in error be required to provide her with means to prosecute her suit, and for alimony while the same is pending in this court. Defendant's counsel deny the juriesdiction of this court to grant such relief. The practice in appellate courts in respect to applications of this kind is by no means uniform. By section 1098, Gen. St., the jurisdiction to grant alimony pendente lite is expressly conferred upon district courts, but counsel fees and suit money are not specified; nevertheless such allowances have also been sustained by this court. Hence, the jurisdiction does not depend upon statute. Daniels v. Daniels, 9 Colo. 133, 10 P. 657. In support of its appellate jurisdiction, and for the purpose of making such jurisdiction effective, this court has expressed liberal views. In Wheeler v. Irrigation Co., 9 Colo. 250, 11 P. 103, it is said: 'One of the inherent powers of an appellate court is the right to make use of all writs known to the common law, and, if necessary, to invent new writs or proceedings, in order to suitably exercise the jurisdiction conferred.' In Friend v. Friend, 65 Wis. 413, 27 N.W. 34, the language of Chief Justice DIXON is approved as follows: 'The granting of temporary alimony and suit money, to enable a wife to prosecute her appeal, is...