Sumner v. Sumner

• Decision Date: 05 April 1882
• Citation: 12 N.W. 21,54 Wis. 642
• Parties: SUMNER v. SUMNER, IMPLEADED, ETC.
• Court: Wisconsin Supreme Court

54 Wis. 642

12 N.W. 21

SUMNER

v.SUMNER, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed April 5, 1882.

Appeal from circuit court, Sauk county.

Noyes Bros. and J. W. Lusk, for respondent.

Levi Cranch, for appellants.

COLE, C. J.

This was an action for divorce on the ground of cruel and inhuman treatment. The circuit court found against the plaintiff on the proofs, and dismissed her complaint. The court further adjudged that the defendant pay the plaintiff the sum of $400, in addition to the suit money already paid, to reimburse the plaintiff's attorneys for actual and necessary disbursements and reasonable fees in prosecuting the action. The appeal is from that part of the judgment making this allowance to the plaintiff on dismissing her complaint. It is claimed that the court below had no power, after having heard the cause and deciding it in favor of the husband upon the merits, to order him to pay any expenses incurred by the wife in prosecuting the action. But we think this view incorrect, and that the statute (section 2361, Rev. St.) gave the court full power to adjudge the payment of this money; for the statute expressly authorizes the court to order the husband to pay such a sum as in its discretion is deemed necessary to enable the wife to prosecute her suit; and we see no reason for holding that this power ends when the case is brought to a hearing and the wife fails to sustain her action. It is evident that this was not the view taken of the statute in Phillips v. Phillips, 27 Wis. 252. There the wife failed to sustain her action, and this court, upon appeal, affirmed the judgment dismissing her complaint. But still, as it appeared that the wife was without any means whatever, and the husband had not been altogether blameless, he was ordered to pay a portion of the expense incurred by her in prosecuting the appeal.

In divorce suits the circuit court has plenary power over the whole subject of these allowances, both before and after judgment; and this court has said that it would not interfere with the determination of the trial court in the matter, unless there had been an abuse of discretion in making such allowances. Williams v. Williams, 29 Wis. 518;Downer, Adm'r, etc., v. Howard, 44 Wis. 82. The statute goes on the theory of the wife's dependence upon her husband for the expenses of the litigation, (Coad v. Coad, 40 Wis. 392,) where she has no separate estate. In this case the court below found that the wife had no...