State ex rel. Clarkson v. St. Louis Court of Appeals
| Decision Date | 31 October 1885 |
| Citation | 88 Mo. 135 |
| Parties | THE STATE ex rel. CLARKSON v. THE ST. LOUIS COURT OF APPEALS. |
| Court | Missouri Supreme Court |
Prohibition.
WRIT AWARDED.
C. P. & J. D. Johnson and Geo. D. Reynolds for relator.
(1) The court of appeals is an appellate tribunal only and has no original jurisdiction to allow alimony pendente lite.Constitution, art. 6; 80 Mo. 470; 49 Mo. 381; Kamp v. Kamp, 59 N. Y. 212; Eskenbrack v. Eskenbrack, 96 N. Y. 456; Wood v. Wood, 7 Lansing (N. Y.) 204; McIntyre v. McIntyre, 80 Mo. 470, and cases cited; Winston v. Winston, 31 Hun. (N. Y.) 290. (2) The circuit court, in which the cause was tried, heard and determined the matter of alimony and allowance of counsel fees; its action thereon has not been appealed from, and is not before this court for review. (3) The amount asked by appellant is exorbitant and beyond all reason, both with respect to the circumstances of the respondent and the services.
Lodge & Talty and Taylor & Pollard for respondent.
(1) Revised Statutes, section 2179, confers the power on the appellate court to allow the alimony. (2) Under the common law the power exists. Bishop on Mar. & Div., secs. 384 and 387. (3) That the circuit court, after the appeal has been allowed, has no further authority to make an order or render a judgment in the case, has been repeatedly decided and is now the undoubted law of this state. Ladd v. Cousins, 35 Mo. 515; Stewart v. Stringer, 41 Mo. 404; State ex rel. v. Sutterfield, 54 Mo. 394; Oberketter v. Luebebering, 4 Mo. App. 481; Exchange Bank v. Allen, 68 Mo. 474.
James L. Clarkson, the relator, brought his suit for divorce against his wife in the Iron county circuit court, alleging as a ground for divorce such indignities as rendered his condition intolerable. The cause was transferred to the circuit court of the city of St. Louis where, on the twenty-sixth day of April, 1885, the circuit court made an order that plaintiff pay defendant in said suit, or to her attorneys, two hundred and fifty dollars for attorney's fees, and also that defendant pay the wife forty dollars per month till further order of that court. On June 14, 1885, a decree was entered granting plaintiff a divorce, but awarding to the wife the custody of the children and sixty-five dollars per month for their support, and adjudging the costs against plaintiff. No other order for alimony or allowance was ever made. From this final decree the wife appealed to the court of appeals, where, during the pendency of her appeal, she asked that court for an allowance for attorneys' fees and for expenses of prosecuting her appeal. When that court having signified its intention to grant the request prayed for, the plaintiff sued out in this court his writ prohibiting the court of appeals from making the order.
The only question before this court is, whether the St. Louis court of appeals has jurisdiction to make an order on the husband in a divorcce suit, pending an appeal in that court, to pay the wife the costs, and counsel fees necessary for the prosecution of her appeal, in a case where the husband was awarded a decree of divorce in the court below. The St. Louis court of appeals has original jurisdiction to issue writs of habeas corpus, quo warranto, mandamus, certiorari, and other original remedial writs,...
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