Sellers v. Sellers

• Decision Date: 14 May 1895
• Docket Number: 17,519
• Citation: 40 N.E. 699,141 Ind. 305
• Parties: Sellers v. Sellers
• Court: Indiana Supreme Court

40 N.E. 699

141 Ind. 305

Sellers v. Sellers

No. 17,519

Supreme Court of Indiana

May 14, 1895

From the Huntington Circuit Court.

The judgment is affirmed.

J. T Alexander and C. W. Watkins, for appellant.

M. L Spencer and W. A. Branyan, for appellee.

OPINION

McCabe, C. J.

The appellant sued the appellee for a divorce.

The appellee moved the court for a temporary allowance to enable her to prepare and try the case and for maintenance during the litigation, supported by affidavits under the statute. Burns R. S. 1894, section 1054, R. S. 1881, section 1042.

The court heard the application for such temporary allowance in vacation at chambers and allowed the appellant thirty days in which to prepare and file a bill of exceptions. The bill of exceptions was three days afterwards signed and filed setting forth the affidavits and evidence on which the order was made. The court ordered the appellant, the plaintiff, to pay to the clerk of the court for the support of the defendant the sum of $ 4 per week until the further order of the court therein and also pay to said clerk the sum of $ 20 for the defendant's attorneys.

From this interlocutory order this appeal is prosecuted and such order is assigned as the only error complained of. An appeal lies from such an order. Gruhl v. Gruhl, 123 Ind. 86, 23 N.E. 1101; Taylor v. Richardson, 2 Ind.App. 452, 28 N.E. 205.

The ground of the complaint against the order is that the affidavits and proofs show that the appellee, the wife, had sufficient means of her own for her own maintenance and to pay the expense of making her defense. It has been held that where a wife has ample means or credit with which to procure funds sufficient for the purposes of making her defense and her present support, it is improper to require her husband to furnish money for such purposes pending the litigation. Kenemer v. Kenemer, 26 Ind. 330.

The facts upon which the court based the order are contained in what purports to be a bill of exceptions, whether legitimately a part of the record or not, may admit of some question. It is doubtful if the judge in vacation had power to grant time in the future when a bill of exceptions could be filed. The statute already cited, authorized expressly the court to make such an allowance in vacation, and possibly, by implication, authorized him to sign a bill of exceptions, but it is not clear that authority is implied to extend the time or grant time in vacation for the future preparation and filing of a bill of exceptions. Elliott App. Proced., section 803, and authorities there cited; 2 Elliott Gen. Prac., section 1080, and authorities there cited; Whitworth v. Sour, 57 Ind. 107; Robinson v. Johnson, 61 Ind. 535.

But waiving this question and treating the bill of exceptions as properly in the record, there does not appear to have been any error committed by the trial court.

This court will only review an order of this kind when there is an abuse of discretion by the trial court.

It was said of such an order in Henderson v Henderson, 110 Ind. 316, 11 N.E. 432 (319-20): "Besides, the allowances complained of are, of necessity, largely within the discretion of the trial court, 'and the abuse of that discretion must be very clear indeed, to justify this court in interfering with its exercise.' Powell...