Shearer v. Shearer

• Decision Date: 23 June 1919
• Docket Number: 10202.
• Citation: 99 S.E. 754,112 S.C. 126
• Parties: SHEARER v. SHEARER.
• Court: South Carolina Supreme Court

99 S.E. 754

112 S.C. 126

SHEARER v. SHEARER.

No. 10202.

Supreme Court of South Carolina

June 23, 1919

Appeal from Common Pleas Circuit Court of Sumter County; John S Wilson, Judge.

Action by Virginia Shearer against Lee Shearer. From order granting temporary alimony and attorney's fees, defendant appeals. Appeal dismissed.

Lee & Moise, of Sumter, for appellant.

Wm. N Graydon, of Columbia, for respondent.

GARY C.J.

This is an appeal from an order granting temporary alimony and a feefor the plaintiff's attorney. Such cases have been before the court so often in recent years, and the principles governing them are so well established, that we do not deem it necessary to cite any authorities, other than those mentioned in the arguments of the attorneys for the respective parties.

The application herein for temporary alimony and a counsel fee was addressed to the sound discretion of his honor, the circuit judge, and the appellant's attorneys have failed to satisfy this court that such discretion was erroneously exercised. Having reached this conclusion, we do not deem it advisable to discuss the testimony, as a discussion thereof could not subserve any useful purpose, and might have a prejudicial effect upon the rights of one or the other of the parties, when the case is heard upon the merits.

Appeal dismissed.

WATTS, J., concurs.

FRASER, J., did not sit.

GAGE, J. (concurring).

I vote for affirmance. Nobody but the family (father, mother, and children) knows what goes on in that circle. Setting off the father's testimony against that of the mother, the daughter Naomi fixes blame on the husband.

The issue here is not final, but only preliminary; final judgment may vindicate the husband; I have seen such instances. I am of opinion that enough appears to show a disordered home by the husband's fault to warrant an inquiry thereabout at his expense.

HYDRICK J. (dissenting).

A careful consideration of the evidence in this case and of the applicable law leads to the irresistible conclusion that the circuit judge was clearly wrong in granting the plaintiff's motion for temporary alimony and suit money. True, the granting or refusing of such a motion is in the sound discretion of the court; but that means a judicial discretion guided by the settled law and sufficient evidence to make at least a prima facie case in plaintiff's favor. Plaintiff admits that she left her husband. The law is:

"If the wife voluntarily leaves her husband's home, as a condition of obtaining temporary alimony

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