Wilson v. Wilson
| Decision Date | 24 September 1945 |
| Docket Number | 35802. |
| Citation | 23 So.2d 303,198 Miss. 334 |
| Court | Mississippi Supreme Court |
| Parties | WILSON v. WILSON. |
Vollor & Teller, of Vicksburg, for appellant.
R. M. Kelly and Brunini & Brunini, all of Vicksburg, for appellee.
After the filing of the record in this case, a motion was made by the appellant wife for an allowance to her for payment to her counsel for their services to her in this Court, but without any evidence in the form of affidavits or otherwise to support it save what was shown in the record of the trial. The trial court overruled the wife's motion for counsel fees made in that court on the ground that the wife's defense was not made in good faith and the court did not pass on the factual issue as to her necessities for such an allowance.
These incidental motions were overlooked by this Court in dealing with the merits, and the appellant wife by her suggestion of error filed in due time and addressed to the point has called attention to the omission, and in connection therewith the parties have in effect agreed that in the event appellee's suggestion of error on the merits is overruled, which has this day been done, the other of affirmance may be modified to the extent and to the extent only that the cause be remanded to the chancery court so that the Chancellor may hear and determine the factual issues whether counsel fees should be allowed to the wife and that thereafter this Court may determine the question as to counsel fees in this Court.
We accede to the agreement to remand as to the issue of counsel fees and that issue only. There is authority to the effect that upon such a remand the trial court may adjudge the fees for the services both in that court and in the appellate court. See text and cases cited 27 C.J.S. Divorce, § 221, pp 921, 922. This has not been debated by counsel and we prefer not to commit ourselves presently to that doctrine as a rule. Inasmuch, however, as we ordinarily, although not always allow for services in this Court fifty percent of the amount allowed by the trial court for services of counsel therein and as we see no reason at this time why that allowance should not be made in this case, we now so adjudge, and acting upon the analogy furnished by Section 1972, Code 1942 and in order to make a reasonable disposition of this matter in the peculiar attitude in which it stands, we hereby authorize the Chancellor to include in his decree an...
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