Roby v. Roby

• Decision Date: 30 December 1903
• Citation: 74 P. 957,9 Idaho 371
• Parties: ROBY v. ROBY
• Court: Idaho Supreme Court

74 P. 957

9 Idaho 371

ROBY v. ROBY

Supreme Court of Idaho

December 30, 1903

ALLOWANCE OF SUIT MONEY PENDING APPEAL-JURISDICTION OF DISTRICT COURT TO ALLOW SAME-JURISDICTION OF SUPREME COURT TO ALLOW SAME.

1. Under the provisions of sections 2472 and 4927 of the Revised Statutes of Idaho, the district courts retain jurisdiction in divorce cases after appeal has been taken from the judgment of such court to make orders directing the payment of costs and expenses necessary in the preparation and perfecting the appeal and for attorneys' fees in prosecuting the same.

2. Held, further, that under the provisions of section 9 article 5, of the constitution, after the record on appeal is filed in the supreme court, that court has power to order the payment of attorneys' fees or suit money when necessary to the complete exercise of its appellate jurisdiction.

(Syllabus by the court.)

ORIGINAL application in the supreme court praying for an order directing the husband to pay a certain sum of money to petitioner to pay the costs and expenses of preparing and perfecting her appeal and for attorneys' fees in the prosecution of the same. Petition and application dismissed.

Motion granted and application dismissed. No costs awarded.

George W. Tannahill, for Appellant.

This is a motion prosecuted by appellant, who is the wife of the respondent, requiring the respondent to pay to the appellant the sum of money sufficient to enable her to pay for the printing of the transcript and brief, and the costs necessary for filing her case in the supreme court, as well as stenographers' fees for writing the brief and transcript and for the payment of $ 250 attorneys' fees to enable appellant to employ an attorney to prosecute her case in the supreme court. (Pleyte v. Pleyte, 15 Colo. 125, 25 P. 25; Lake v. Lake, 17 Nev. 230, 30 P. 878; Bohnert v. Bohnert, 91 Cal. 428, 27 P. 732; Larkin v. Larkin, 71 Cal. 330, 12 P. 227; Ex parte Winter, 71 Cal. 291, 11 P. 630; People v. District Court, 21 Colo. 251, 40 P. 460; Rose v. Rose, 109 Cal. 544, 42 P. 452; Wolff v. Wolff (Cal), 37 P. 858.)

Charles L. McDonald, for Respondent.

This matter comes before the court on an original application of the plaintiff and appellant herein for an order compelling the defendant to pay to her money to be used in defraying the expenses of appealing to this court from an order made by the district court of the second judicial district of the state of Idaho refusing to grant to her a divorce from the defendant herein. The respondent herein has moved to dismiss the said application on the ground that this court has not jurisdiction to consider the same. It is shown by the affidavit of the attorney for the defendant herein that prior to the filing of the notice of appeal in this matter the plaintiff made an application to the judge of the district court above mentioned for an order allowing her money to defray the expenses of an appeal herein; that prior to the filing of the notice of appeal herein, the judge of said court made an order allowing the plaintiff herein the sum of seventy-five dollars ($ 75) to be used for said purpose. We are of the opinion that the question of suit money, even for expenses of an appeal to the supreme court, is one strictly within the sole jurisdiction of the trial court. (Idaho Rev Stats., sec. 4297.) Section 2472 of the Revised Statutes provides that "while an action for divorce is pending, the court may, in its discretion require the husband to pay any money necessary to enable the wife to prosecute or defend the action." The court it has reference to here is the district court, and when it states "while the suit is pending," in our judgment this means pending in the supreme court as well as in the district court. Some courts, under special constitutional provisions, have held that the appellate court is the proper place to apply for money to defray the costs of an appeal in a case of this character. The soundness of this doctrine is disputed by other courts. We will rest this matter with your honors by referring solely to the decisions of the supreme court of California on the subject, believing that they are founded on sound logic and on the law. (Reilly v. Reilly, 60 Cal. 624; Bohnert v. Bohnert, 91 Cal. 428, 27 P. 752.)

AILSHIE, J. Sullivan, C. J., and Stockslager, J., concur.

OPINION

AILSHIE, J.

This is an original application made in this court by Emily H. Roby, plaintiff in the lower court, praying for an order of this court allowing her suit money and attorneys' fees to enable her to prosecute her appeal from the judgment of the trial court. It appears that the plaintiff was dissatisfied with the judgment of the district court, and filed and served her notice of appeal therefrom, and thereafter applied to the district judge who tried the cause for an order directing the husband to pay into court a sufficient amount to pay court costs and for the printing of the transcript and brief on appeal to this court, and for attorneys' fees for the prosecution of such appeal in this court. The district judge made an order allowing plaintiff the sum of $ 75 for such purpose, but she contends that this is not enough, and has made her original application in this court praying for an order requiring the defendant to pay the sum of $ 250 for costs and disbursements in the preparation of her appeal, and the further sum of $ 250 for attorneys' fees in the prosecution of such appeal. The defendant has filed a motion to dismiss the petition and application of plaintiff upon the ground that this court has no jurisdiction to hear and determine such an original application. It should be observed in the consideration of this matter that while an appeal has been taken to this court, the transcript on appeal has not yet been filed.

Section 4927, Revised Statutes, is as follows: "An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied."

Under the provisions of this section we conclude that this action is still pending.

Section 2472, Revised Statutes, provides that "While an action for divorce is pending, the court may, in its discretion require the husband to pay as alimony any money...