Snider v. Snider

• Decision Date: 03 June 1913
• Docket Number: No. 21,947.,21,947.
• Parties: SNIDER v. SNIDER.
• Court: Indiana Supreme Court

179 Ind. 583

102 N.E. 32

SNIDER

v.SNIDER.

No. 21,947.

Supreme Court of Indiana.

June 3, 1913.

Appeal from Circuit Court, Allen County; E. O'Rourke, Judge.

Suit for divorce by Christian Snider against Lavina Snider. From an order allowing defendant suit money, plaintiff appeals. Affirmed.

P. B. Colerick and Leonard, Rose & Zollars, all of Ft. Wayne, for appellant. Harry H. Hilgemann and Thomas & Townsend, all of Ft. Wayne, for appellee.

COX, J.

Appellant sued appellee for a divorce, and she appeared and asked an allowance of $200 for attorney's fees that she might make her defense. After a hearing on this question the court ordered appellant to pay to appellee the sum named within five days. From this interlocutory order this appeal is brought.

The basis of the claim made in behalf of appellant that the order was improperly made is that it is made to appear that appellee had ample means and credit of her own to enable her to support herself and make her defense, and that therefore the allowance was an abuse of the discretion possessed by trial courts in such cases.

In appellee's verified application for the allowance it shows that the parties were married in 1880 and were separated from bed and board for a limited time by decree of the court rendered in 1909, at which time the court allowed her $1,000 and $20 per month; that appellee at the time the allowance now appealed from was asked owned 50 acres of land in Allen county worth about $50 an acre, of which only 20 acres were cleared and under cultivation; that she also had a note for $1,500 secured by mortgage on real estate; that since the decree of separation she had built a house and barn on this land at an expense of $1,800, and had also been to expense in fencing and buying stock for her farm, and had so used all the money allowed her by that decree and $1,000 which she had borrowed and pledged the mortgage note for $1,500 as security; that she owed various additional sums amounting in the aggregate to something more than $150; that she had no other money or means or sources of income than that stated, and no means of support other than the cleared 20 acres, which was insufficient for her support, and that she cannot borrow more money on the $1,500 note. It is further shown that appellant at the time owned 150 acres of unincumbered, well-improved real estate in Allen county worth $100 an acre, with machinery, stock, and other personal property worth between $3,000 and $4,000; and that in addition she was informed and believed he was worth, in money in bank and loaned on real estate, $30,000. It was further shown that she was then 64 years old and had borne appellant four children, all of whom had become of age; that she had helped to clear her land and do the work on her farm, but could do so no longer on account of growing infirmity, and that appellant had ceased making the payments of $20 a month under the former decree.

In a verified statement in opposition to the allowance, filed by appellant, it is shown that at the time of their marriage he owned 80 acres of land then worth $45 an acre; that when appellee's father's estate was settled she received therefrom $2,400, and that appellant at that time bought 120 acres of land towards the purchase of which she gave her inheritance, and that some time thereafter he conveyed to her 50 acres of the land so purchased, and that it was then worth $100 an acre, exclusive of timber on it, which timber, it was stated, appellee had sold about three years before the application for allowance for $3,000, and had also sold wood to the amount of $500; that during the time they lived together appellee had the income from the milk, poultry, and garden produce, amounting to about $6 a week; that in addition to this she had horses and cattle to the value of $400 or $500; that appellant paid appellee the $1,000 allowed her on the separation and the $20 a month for a period of two years; and that when she left him she took household goods of the value of $200. It is admitted that appellant owned at the time 150 acres of land worth $90 an acre, $400 worth of personal property, and $2,000 in money. It is averred that appellant is willing to join appellee in mortgaging or selling her land to raise money to make her defense.

To this appellee responded by a verified statement, in further support of her application, in which it is averred that she possessed certain personal property at the time of her marriage with appellant; that she inherited 40 acres of land which she held for four years, during which it produced $1,000, after which she sold it for $2,500 on four years' time, at interest; that all this money, amounting to $3,500 or more, together with $50 in cash which appellee received from her mother, and $50 the value of a cow belonging to appellee which appellant had sold, was used by appellant in the purchase of the 120 acres of land referred to, which was purchased when appellee was sick in bed, and appellant took the title in his own name; that this purchase was made about 20 years before, and appellant had the possession and profits of all of the land until in 1904, when he deeded appellee 50 acres of it in consideration for the money so received from her, and since then had received the income of the residue of the 120 acres; that appellee used what she received from the farm while she lived with appellant for the support of the family, including the purchase of clothing for herself, the children, and appellant. It is admitted that appellee did sell timber and wood off the 50 acres deeded to her to the amount of $3,300, but it is averred $1,500 of it was loaned and not available, as shown in her application for the allowance, and that the residue was used in settling the two daughters of the parties when married, and in necessary expenditures for herself; that the household furniture which she took with her when the separation occurred belonged to appellee; that she owned one horse, one cow and calf, and a few chickens, and no other stock...